BLACKSHEAR v. UNITED STATES OF AMERICA

Filing 5

OPINION. Signed by Judge Noel L. Hillman on 10/10/2017. (tf, n.m.)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
______________________________
:
:
:
Petitioner,
:
:
v.
:
:
WARDEN DAVID ORTIZ,
:
:
Respondent.
:
______________________________:
JAMAR BLACKSHEAR,

Civ. No. 17-712 (NLH)
OPINION

APPEARANCES:
Jamar Blackshear
67023-066
Fort Dix
Federal Correctional Institution
Inmate Mail/Parcels
East: P.O. Box 2000
Fort Dix, NJ 08640
Petitioner Pro se

HILLMAN, District Judge
Petitioner Jamar Blackshear, a prisoner confined at the
Federal Correctional Institution (“FCI”) in Fort Dix, New
Jersey, filed a writ of habeas corpus under 28 U.S.C. § 2241.
(ECF No. 1.)

Because he failed to name a proper respondent and

failed to submit the filing fee or an in forma pauperis
application, the Court administratively terminated this matter.
(ECF Nos. 2, 3.)

Petitioner thereafter submitted the filing fee

and an Amended Petition.

(ECF No. 4.)

At this time, the Court

will review the Amended 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. § 2243.

For the reasons set forth

below, the Amended Petition will be dismissed.
I.

BACKGROUND
Petitioner provides the following summary of his underlying

federal criminal proceedings:
On or about March 10, 2011, the United States
secured a complaint and arrest warrant
charging Petitioner with intent to distribute
approximately 740 grams of a mixture and
substance containing cocaine, in violation of
21 U.S.C. § 841(A)(1), (b)(l)(B) and 18 U.S.C.
§ 2; and possession, and aiding and abetting
the possession of a firearm in furtherance of
a drug trafficking crime, in violation of 21
U.S.C. § 841(A)(1) and 18 U.S.C. §§ 924(c)(1)
and (2).
On March 14, 2011 federal
authorities
arrested
Petitioner
on
the
complaint and temporarily detained him.
On
April 13, 2011, a grand jury sitting within
the United States District Court for the
Eastern District of Pennsylvania returned a
two-count indictment against Petitioner. The
indictment alleged the same charges alleged in
the March 10, 2011 complaint.
On May 12, 2011 Petitioner entered a plea of
not guilty of both counts in Petitioner's
Indictment.
On November 7, 2011, Petitioner pled guilty of
both counts laid in the indictment.
Under
Petitioner's
guilty
plea
agreement,
Petitioner preserved the right to appeal the
District Court's erroneous denial of his
Motion to Suppress.
On February 7, 2012, the District Court
sentenced Petitioner to a sixty (60) month
2

sentence on Count and a (60) month sentence of
Count 2, to run consecutively to Count 1. The
District Court also imposed a four (4) year
term of supervised release and a special
assessment of $ 200.

(Am. Pet. 2-3.)

Petitioner states that he was initially

arrested by the Philadelphia police and charged by the
Philadelphia Commonwealth Attorney’s Office, but his case was
then referred to the United States Attorney’s Office through a
program called “Project Safe Neighborhood.”

(Am. Pet. 3-4.)

In his Amended Petition, Petitioner argues that “he
received ineffective assistance of counsel during the
Commonwealth court pretrial proceeding where counsel failed to
investigate the totality of his case and discover that the
Commonwealth Attorney's Office failed to adhere to Project Safe
Neighborhood's criteria mandate during the commonwealth Court
proceedings and inquire to the Commonwealth Court to decide
whether the Commonwealth Attorney's motion for nolle prosequi
(withdrawal) in bad faith.”

(Am. Pet. 7.)

In sum, Petitioner

raises various ineffective assistance of counsel claims with
regard to his attorney’s actions during his federal criminal
proceedings.
II.
A.

DISCUSSION
Legal Standard

3

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).
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. Schult,

708 F.3d 140, 148 n. 3 (3d Cir. 2013); see also 28 U.S.C. §§
2243, 2255.
B. Analysis
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);
4

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).

See 28

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.
Id.

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
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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
ineffective remedy.

See Cradle v. United States, 290 F.3d 536,

539 (3d Cir. 2002).
Here, Petitioner’s claims do not fall into the Dorsainvil
exception.

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.

Instead,

he is simply raising ineffective assistance of counsel claims,
which are not properly brought in a § 2241 petition.

See Hazel

v. Smith, 142 F. App'x 131, 132 (3d Cir. 2005) (per curiam)
6

(“[C]laims of ineffective assistance of counsel ... place his
petition squarely within the scope of § 2255. Section 2255 is
not inadequate simply because AEDPA's gatekeeping restrictions
prevent him from availing himself of it”) (citing Cradle, 290
F.3d at 538–39; Dorsainvil, 119 F.3d at 251); Sedlak v. United
States, No. 12–0285, 2012 WL 832984, at *3 (M.D. Pa. Feb. 14,
2012) (“cases construing Dorsainvil, and interpreting the
interplay between the relief provided to federal prisoners under
§ 2255, and the remedy conferred by the writ of habeas corpus
under § 2241, agree that 'Section 2241 is not available for [a
federal prisoner's] ineffective assistance of counsel claim, as
he has not demonstrated that Section 2255 is an inadequate or
ineffective remedy’”) (quoting Piggee v. Bledsoe, 412 F. App'x
443, 446 (3d Cir. 2011) (per curiam)) (other citations omitted).
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
was filed.”

28 U.S.C. § 1631.

Because it appears that the

Amended Petition may be untimely if construed as a § 2255
motion, see 28 U.S.C. § 2255(f), the Court will not transfer it

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to the Eastern District of Pennsylvania. 1

Accordingly, the

Amended Petition will be dismissed for lack of jurisdiction.
III. CONCLUSION
For the foregoing reasons, the Court will dismiss the
Amended Petition for lack of jurisdiction.

An appropriate order

follows.

Dated: October 10, 2017
At Camden, New Jersey

s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.

1

Nothing in this Opinion should be construed as preventing
Petitioner from filing a § 2255 motion in the Eastern District of
Pennsylvania for that court's consideration in the first instance.
8