AL-HAJ v. KIRBY
OPINION. Signed by Chief Judge Jerome B. Simandle on 4/25/17. (jbk, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
HONORABLE JEROME B. SIMANDLE
No. 16-8393 (JBS)
WARDEN MARK KIRBY,
Ahmed Mohammed-Abdullah-Omar Al-Haj, Petitioner pro se
Fairton Federal Correctional Institution
PO Box 420
Fairton, New Jersey 08320
SIMANDLE, Chief Judge:
This matter comes before the Court on Ahmed MohammedAbdullah-Omar Al-Haj’s (“Petitioner”) petition for writ of
habeas corpus pursuant to 28 U.S.C. § 2241. Petition, Docket
Entry 1. Petitioner’s application to proceed in forma pauperis
is denied without prejudice as he did not submit a certified
account statement as required by Local Civil Rule 81.2. However,
the Court will review the petition as Petitioner has paid the
For the reasons set forth below, the petition is dismissed
for lack of jurisdiction.
In 2005, Petitioner entered a conditional guilty plea on an
indictment charging him with possessing 332 pounds of
pseudoephedrine in violation of 21 U.S.C. § 841(c)(2), and
reserved the right to challenge the denial of his motion to
suppress. The Tenth Circuit affirmed the trial court’s decision
on appeal. See United States v. Al-Haj, 181 F. App'x 717 (10th
On August 29, 2016, this Court dismissed a petition filed
pursuant to 28 U.S.C. § 2241 alleging violations of Petitioner’s
Fourth Amendment rights for lack of jurisdiction. Ahmed Muhammed
Abdullah-Omar Al-Hajj v. Kirby, No. 16-1479, 2016 WL 4508229
(D.N.J. Aug. 29, 2016), aff’d sub nom. Ahmed Muhammed Abull AlHaj v. Warden Fairton FCI, No. 16-3771 (3d Cir. Jan. 17, 2017).
Petitioner filed this new § 2241 petition on November 9, 2016.
STANDARD OF REVIEW
Petitioner brings this petition as a pro se litigant. The
Court has an obligation to liberally construe pro se pleadings
and to hold them to less stringent standards than more formal
“[A] court may take judicial notice of a prior judicial
opinion.” McTernan v. City of York, 577 F.3d 521, 525 (3d Cir.
pleadings drafted by lawyers. Erickson v. Pardus, 551 U.S. 89,
94 (2007); Higgs v. Attorney Gen. of the U.S., 655 F.3d 333, 339
(3d Cir. 2011), as amended (Sept. 19, 2011) (citing Estelle v.
Gamble, 429 U.S. 97, 106 (1976)).
Nevertheless, a federal district court must dismiss a
habeas corpus petition if it appears from the face of the
petition that the petitioner is not entitled to relief. 28
U.S.C. § 2254 Rule 4 (made applicable through Rule 1(b)); see
also McFarland v. Scott, 512 U.S. 849, 856 (1994); Siers v.
Ryan, 773 F.2d 37, 45 (3d Cir. 1985), cert. denied, 490 U.S.
Section 2241 “confers habeas jurisdiction to hear the
petition of a federal prisoner who is challenging not the
validity but the execution of his sentence.” Coady v. Vaughn,
251 F.3d 480, 485 (3d Cir. 2001). Petitioner asserts he is
“actually innocent” of his crimes and sentence. Petition ¶
10(c). In his brief in support, however, Petitioner argues he
did not consent to the search of his vehicle as he was not given
an interpreter after being stopped by the Kansas Highway Patrol,
that the officer conducting the traffic stop and search failed
to provide him with Miranda2 warnings, and that both his trial
Miranda v. Arizona, 384 U.S. 436 (1966).
attorney and the Assistant United States Attorney committed
fraud upon the trial court.
“[Section] 2255 expressly prohibits a district court from
considering a challenge to a prisoner's federal sentence under §
2241 unless the remedy under § 2255 is ‘inadequate or
ineffective to test the legality of his detention.’” Snyder v.
Dix, 588 F. App’x 205, 206 (3d Cir. 2015) (per curiam) (quoting
28 U.S.C. § 2255(e)); see also In re Dorsainvil, 119 F.3d 245,
249 (3d Cir. 1997). “A § 2255 motion is inadequate or
ineffective only where the petitioner demonstrates that some
limitation or procedure would prevent a § 2255 proceeding from
affording him a full hearing and adjudication of his wrongful
detention claim.” Cradle v. U.S. ex rel. Miner, 290 F.3d 536,
538 (3d Cir. 2002) (citations omitted). Petitioner makes no
attempt to make such a showing, and the petition does not allege
that the conduct forming the basis of his conviction “has since
been deemed non-criminal by an intervening Supreme Court
decision . . . .” Upshaw v. Warden Lewisburg USP, 634 F. App’x
357, 358 (3d Cir. 2016) (per curiam) (citing Dorsainvil, 119
F.3d at 251–52).
Petitioner also cannot invoke the “actual innocence”
exception to § 2255. “To support an actual innocence claim, the
petitioner must establish that in light of all the evidence, it
is more likely than not that no reasonable juror would have
convicted him.” United States v. Tyler, 732 F.3d 241, 246 (3d
Cir. 2013) (internal citation and quotation marks omitted).
Here, Petitioner challenges the legality of traffic stop and
subsequent search in yet another attempt to relitigate his
suppression motion. Nothing in the petition supports a
conclusion that no juror would have convicted him based on the
evidence. Accordingly, the Court lacks jurisdiction over the
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
was filed.” 28 U.S.C. § 1631. The Court finds that it is not in
the interests of justice to transfer this habeas petition as it
does not appear Petitioner can meet the requirements for filing
a second or successive § 2255 motion as set forth in § 2255(h).
However, this Court's decision to not transfer this case does
not prevent Petitioner from seeking leave from the Tenth
Circuit, see 28 U.S.C. § 2244(a), should he elect to do so.
For the above stated reasons, the petition is dismissed for
lack of jurisdiction. An accompanying Order will be entered.
April 25, 2017
s/ Jerome B. Simandle
JEROME B. SIMANDLE
Chief U.S. District Judge
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