BROOKS v. MARLER

Filing 3

OPINION. Signed by Judge Renee Marie Bumb on 2/22/17. (jbk, )

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

LEROY BROOKS,
Petitioner,
v.
SEAN MARLER,
Respondent.

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Civil Action No. 17-114(RMB)

OPINION

BUMB, District Judge
This

matter

comes

before

the

Court

upon

Petitioner’s

submission of a petition under 28 U.S.C. § 2241 (Pet., ECF No.
1), accompanied by an application to proceed in forma pauperis
(“IFP App.”), pursuant to 28 U.S.C. § 1915. (IFP App., ECF No.
1-3.) Plaintiff’s affidavit of poverty establishes his financial
eligibility for IFP status. See 28 U.S.C. § 1915(a). The Court
will grant his IFP application.
The Court must review the petition and dismiss the petition
if

“it

plainly

appears

from

the

petition

and

any

attached

exhibits that the petitioner is not entitled to relief in the
district court.” See Rule 4 of the Rules Governing Section 2254
Cases in the United States District Courts, applicable to cases
filed under 28 U.S.C. § 2241 pursuant to Rule 1, the scope of

the Rules.

For the reasons discussed below, the Court will

dismiss the petition for lack of jurisdiction.
I.

BACKGROUND

Petitioner is a federal inmate confined at the Philadelphia
Federal Detention Center in Pennsylvania.
2.)

In

the

present

habeas

petition,

(Pet., ECF No. 1 at

he

is

challenging

his

January 19, 2016 conviction in the United States District Court,
District of New Jersey, for which he has not yet been sentenced.
(Id., ¶4); See U.S. v. Brooks, Crim. Action No. 14-382(RMB) (ECF
No.

105).

Currently

Petitioner’s
“Supplemental

motion

for

pending
a

Post-Verdict

in

new

his

trial

Omnibus

criminal

(ECF

No.

Motions”

action

115);

(ECF

and

No.

is
his

121).

Petitioner also filed, in his criminal case, a self-styled “Writ
of Dismissal of Cause of Action and Release for Lack of Subject
Matter Jurisdiction” (“Writ of Dismissal”) (ECF No. 117).
In the present petition, as in his Writ of Dismissal in his
criminal

action,

Petitioner

contends

this

Court

lacked

jurisdiction over his superseding indictment for violation of 18
U.S.C. § 1951(a); 21 U.S.C. § 846; 18 U.S.C. § 922(g)(1); and 18
U.S.C. § 924(c); and that his conviction violates Article 4, §2,
cl. 1, and the 9th and 10th Amendments of the United States
Constitution.

(ECF No. 1-2 at 1.)

Petitioner has not yet filed

a direct appeal or a motion to vacate, set aside or correct his
sentence under 28 U.S.C. § 2255.
2

Petitioner explained in his petition that a motion under §
2255 is inadequate or ineffective to challenge his conviction or
sentence because:
A 2255 is for after the direct appeal and
sentence.
I am not at that stage and my
challenge is in regards to constitutional
violations by way of my conviction and it
was in violation of the laws and treaties of
the United States.
(Pet., ECF No. 1, ¶10(c)).
II.

DISCUSSION
The presumptive means for a federal prisoner to challenge

the legality of his conviction or sentence, once the conviction
is final, is through a motion filed pursuant to 28 U.S.C. §
2255.

Okereke v. U.S., 307 F.3d 117, 120 (3d Cir. 2002).

28

U.S.C. § 2255(e) contains a savings clause applicable to cases
where a § 2255 motion would be inadequate or ineffective.
“A court may not entertain a habeas petition under § 2241
made

by

a

federal

prisoner

“in

custody

under

sentence

of

a

[federal] court ... unless it also appears that the remedy by
motion [under § 2255] is inadequate or ineffective to test the
legality

of

[the

prisoner's]

detention.”

Gardner

v.

Warden

Lewisburg, 845 F.3d 99, 102 (3d Cir. 2017) (citing 28 U.S.C. §
2255)). “A § 2255 motion would be inadequate or ineffective only
if

the

petitioner

can

show

that

a

limitation

of

scope

or

procedure would prevent a § 2255 proceeding from affording him a

3

full hearing and adjudication of his wrongful detention claim.”
Norman v. Levi, 305 F. App’x 820, 821 (3d Cir. 2009) (quoting
Okereke, 307 F.3d at 120.))
Petitioner has not shown that a § 2255 proceeding would not
afford him a full hearing and adjudication of his claim.

He

simply does not wish to wait until he is sentenced and completes
his direct appeal before raising the present claims.
in

submitting

resolved

does

a

§

not

2255

motion

render

§

until

2255

the

inadequate

direct
or

A “delay
appeal

is

ineffective.”

Norman, 305 F. App’x at 821 (citing e.g. United States v. Pirro,
104 F.3d 297, 299 (9th Cir. 1997)).
The Court, therefore, lacks jurisdiction over Petitioner’s
§ 2241 petition.

The Court declines to construe the petition as

arising under § 2255 because such a motion would be subject to
dismissal as premature.

Id., (citing Kapral v. United States,

166 F.3d 565, 570-72 (3d Cir. 1999) (a collateral attack is
generally

inappropriate

if

the

possibility

of

direct

review

remains open).
III. CONCLUSION
In the accompanying Order filed herewith, the Court will
dismiss the petition for lack of jurisdiction.
Dated: February 22, 2017
s/Renée Marie Bumb
RENÉE MARIE BUMB
United States District Judge
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