BOJORQUEZ-VILLALOBOS v. KIRBY
OPINION FILED. Signed by Judge Noel L. Hillman on 10/11/17. (js)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
WARDEN MARK KIRBY,
Civ. No. 16-8186 (NLH)
Federal Correctional Institution
P.O. Box 420
Fairton, NJ 08320
Petitioner Pro se
HILLMAN, District Judge
Petitioner Cesar Bojorquez-Villalobos, a prisoner confined
at the Federal Correctional Institution (“FCI”) in Fairton, New
Jersey, filed a writ of habeas corpus under 28 U.S.C. § 2241.
(ECF No. 1.)
At this time, the Court will review the Petition
pursuant to Rule 4 of the Rules Governing Section 2254 Cases,
(amended Dec. 1, 2004), made applicable to § 2241 petitions
through Rule 1(b) of the Habeas Rules.
See also 28 U.S.C. §
For the reasons set forth below, the Petition will be
The United States Court of Appeals for the Tenth Circuit
provides the following summary of the procedural history of
Petitioner’s underlying criminal case:
Cesar Bojorquez-Villalobos pled guilty in 2011
to conspiring to distribute methamphetamine in
violation of 21 U.S.C. § 846 and to being an
illegal alien in possession of a firearm in
violation of 18 U.S.C. §§ 922(g)(5) and
924(a)(2). The district court sentenced him
to 108 months in prison—a sentence that was
later reduced to 87 months based on Amendment
Guidelines. In 2013, Mr. Bojorquez-Villalobos
moved unsuccessfully to vacate, set aside, or
correct his sentence under 28 U.S.C. § 2255,
and this court denied a certificate of
In Re: Cesar Bojorquez-Villalobos, Civil Action No. 16-2169 (10th
Circuit to file a second or successive § 2255 motion based on the
Supreme Court’s holding in Johnson v. United States, 135 S. Ct.
2551 (2015). 1
The Tenth Circuit denied his request because
Petitioner did not receive an increased sentence under the ACCA or
Johnson held that the “residual clause” in the definition of a
qualifying “violent felony” used for sentence enhancement under
the Armed Career Criminal Act (“ACCA”) violated the constitutional
prohibition against vague criminal laws, and that an increased
sentence based on that clause violates a defendant’s right to due
process. Johnson, 135 S. Ct. at 2557, 2563.
under U.S.S.G. § 2D1.1(b)(1), which does not contain the language
invalidated in Johnson.
(ECF No. 1.)
In his Petition, Petitioner argues that “[a]t issue
is petitioner[’s] contention that the residual clause of U.S.S.G.
§ 4Bl.2(a)(2) is void for vagueness, and/or that his aggravated
battery conviction does not constitute a "crime of violence" as
defined in U.S.S.G. § 4Bl.2(a).”
United States Code Title 28, Section 2243, provides in
relevant part as follows:
A court, justice or judge entertaining an
application for a writ of habeas corpus shall
forthwith award the writ or issue an order
directing the respondent to show cause why the
writ should not be granted, unless it appears
from the application that the applicant or
person detained is not entitled thereto.
A pro se pleading is held to less stringent standards than more
formal pleadings drafted by lawyers.
Estelle v. Gamble, 429
U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520 (1972).
At the time of the Tenth Circuit’s denial, the Supreme Court had
not yet decided Beckles v. U.S., where it determined that the
Guidelines are not subject to a vagueness challenge under the Due
Process Clause. 137 S. Ct. 886, 892, 197 L. Ed. 2d 145 (2017).
A pro se habeas petition must be construed liberally. See
Hunterson v. DiSabato, 308 F.3d 236, 243 (3d Cir. 2002).
Nevertheless, a federal district court can dismiss a habeas
corpus petition if it appears from the face of the petition that
the petitioner is not entitled to relief.
See Denny v. Schultz,
708 F.3d 140, 148 n. 3 (3d Cir. 2013); see also 28 U.S.C. §§
As noted by the Court of Appeals for the Third Circuit in
In re Dorsainvil, 119 F.3d 245, 249 (3d Cir. 1997), a motion to
vacate, set aside, or correct sentence under 28 U.S.C. § 2255
has been the “usual avenue” for federal prisoners seeking to
challenge the legality of their confinement.
See also Okereke
v. United States, 307 F.3d 117, 120 (3d Cir. 2002); United
States v. McKeithan, 437 F. App’x 148, 150 (3d Cir. 2011);
United States v. Walker, 980 F. Supp. 144, 145–46 (E.D. Pa.
1997) (challenges to a sentence as imposed should be brought
under § 2255, while challenges to the manner in which a sentence
is executed should be brought under § 2241).
Section 2255, however, contains a safety valve where “it
appears that the remedy by motion is inadequate or ineffective
to test the legality of [Petitioner's] detention.”
U.S.C. § 2255(e).
In Dorsainvil, the Third Circuit held that
the remedy provided by § 2255 is “inadequate or ineffective,”
permitting resort to § 2241 (a statute without timeliness or
successive petition limitations), where a prisoner who
previously had filed a § 2255 motion on other grounds “had no
earlier opportunity to challenge his conviction for a crime that
an intervening change in substantive law may negate.”
Dorsainvil, 119 F.3d at 251.
The court emphasized, however, that its holding was not
intended to suggest that § 2255 would be considered “inadequate
or ineffective” merely because a petitioner is unable to meet
the stringent limitations or gatekeeping requirements of § 2255.
To the contrary, the court was persuaded that § 2255 was
“inadequate or ineffective” in the unusual circumstances
presented in Dorsainvil because it would have been a complete
miscarriage of justice to confine a prisoner for conduct that,
based upon an intervening interpretation of the statute of
conviction by the United States Supreme Court, may not have been
criminal conduct at all.
Id. at 251-52.
The Court of Appeals for the Third Circuit subsequently
emphasized the narrowness of its Dorsainvil holding when it
rejected a district court's conclusion that § 2255 was
“inadequate or ineffective” to address a claim based on Apprendi
v. New Jersey, 530 U.S. 466, 490 (2000), an intervening decision
which held that, “[o]ther than the fact of a prior conviction,
any fact that increases the penalty for a crime beyond the
prescribed statutory maximum must be submitted to a jury, and
proved beyond a reasonable doubt.”
See Okereke, 307 F.3d at
120-21 (in which the petitioner had been sentenced based upon a
drug quantity determined at sentencing by a judge using the
preponderance of evidence standard).
The mere fact that a claim
is time barred does not render § 2255 an inadequate or
See Cradle v. United States, 290 F.3d 536,
539 (3d Cir. 2002).
Here, Petitioner’s claims do not fall into the Dorsainvil
Specifically, he does not allege that he had no
earlier opportunity to challenge his conviction for a crime that
an intervening change in substantive law may negate.
his Johnson claim relates to the ultimate sentence he received,
not that an intervening change in substantive law negates the
crimes for which he was convicted.
See Scott v. Shartle, 574 F.
App'x 152, 155 (3d Cir. 2014) (“[B]ecause [petitioner] is
challenging his career offender designation and is not claiming
that he is now innocent of the predicate
offense, he does not
fall within the ‘safety valve’ exception created in In re
Dorsainvil and cannot proceed under § 2241”) (citation omitted);
McIntosh v. Shartle, 526 F. App'x 150, 152 (3d Cir. 2013)
(“Here, McIntosh is challenging his designation as a career
offender. Thus, he does not fall within the exception created in
Dorsainvil and may not proceed under § 2241”) (citation
omitted); Johnson v. Scism, 454 F. App'x 87, 88 (3d Cir. 2012)
(same); Pearson v. Warden Canaan USP, 685 F. App'x 93, 96 (3d
Cir. 2017) (“§ 2241 is not available for an intervening change
in the sentencing laws”); Jackman v. Hollingsworth, No. 16-3572
(RBK), 2016 WL 4163549, at *3 (D.N.J. Aug. 5, 2016) (finding
that Johnson claim does not meet the Dorsainvil exception). 3
Based on the foregoing, the Court finds that it lacks
jurisdiction under § 2241 over the instant habeas petition.
Whenever a civil action is filed in a court that lacks
jurisdiction, “the court shall, if it is in the interests of
justice, transfer such action . . . to any other such court in
which the action . . . could have been brought at the time it
28 U.S.C. § 1631.
In this case, the Court will not
transfer the Petition to the Tenth Circuit for its consideration
as a request to file a second or successive § 2255 motion
because the court has already previously denied that request by
Even if Petitioner could meet the limited exception identified
in Dorsainvil, his claims lack substantive merit for the reasons
stated by the Tenth Circuit.
The Court’s decision not to transfer the instant Petition does
not preclude Petitioner from filing a request with the Tenth
Circuit on his own.
For the foregoing reasons, the Petition will be summarily
dismissed due to a lack of jurisdiction.
An appropriate order
Dated: October 11, 2017
At Camden, New Jersey
s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.
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