CHIRINO-RIVERA v. ORTIZ

Filing 2

OPINION. Signed by Judge Renee Marie Bumb on 4/10/2017. (tf, n.m.)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
________________________
LAUREANO CHIRINO-RIVERA,
Petitioner,
v.

DAVID ORTIZ, WARDEN,
Respondent.
________________________

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Civ. No. 17-973 (RMB)

OPINION

BUMB, United States District Judge
Petitioner Laureano Chirino Rivera, a prisoner confined in
FCI Fort Dix, in Fort Dix, New Jersey, filed a Petition for Writ
of Habeas Corpus pursuant to 28 U.S.C. § 2241 on February 14,
2017.

(Pet.,

ECF

No.

1.)1

Petitioner

seeks

to

vacate

his

1

Petitioner filed an IFP application which is deficient under 28
U.S.C. § 1915(a)(1) because it does not include an affidavit of
poverty signed by Petitioner.
(ECF No. 1-3.) However, for the
reasons discussed in the Opinion below, the petition should have
been brought as a motion to vacate, set aside or correct
sentence under 28 U.S.C. § 2255, which does not require payment
of a filing fee.
Therefore, the Court will proceed with
reviewing the petition pursuant to Rule 4(b) of the Rules
Governing Section 2255 Cases in the United States District
Courts, which provides:
The judge who receives the motion must
promptly examine it.
If it plainly appears
from the motion, any attached exhibits, and
the record of prior proceedings that the

conviction

and

ineffective
cruel

and

sentence

assistance
unusual

of

and

obtain

counsel,

punishment,

a

new

denial

and

trial

of

based

trial

by

unconstitutional

on

jury,

sentence.

(Habeas Corpus Brit and Arguments in Supp. Mot. Civ. Action [28
U.S.C. 2241] (“Petr’s Mem.”) (ECF No. 1-2 at 2.)
asserts

that

jurisdiction

is

proper

under

28

Petitioner

U.S.C.

§

2241

because the remedy for a motion to vacate under 28 U.S.C. § 2255
is inadequate or ineffective.

(Pet., ECF No. 1 at 6, ¶10(c)).

For the reasons discussed below, the Court will dismiss the
petition for lack of jurisdiction.
I.

BACKGROUND
Petitioner is presently serving a federal sentence in FCI

Fort Dix, for his conviction and sentence imposed on July 28,
2008,

in

the

United

District of Florida.

States

District

Court

for

(Pet., ECF No. 1, ¶4.)

the

Southern

Petitioner pled

guilty to conspiracy to commit robbery, and conspiracy to carry
a

firearm

in

furtherance

of

a

crime

of

violence.

U.S.

v.

Chirino Rivera, 348 F. App’x 462, 463 (11th Cir. 2009) cert.
denied, 559 U.S. 952 (2010).

Petitioner filed a direct appeal,

which was denied by the Eleventh Circuit on October 5, 2009,
because

Petitioner

knowingly

and

voluntarily

appeal-waiver provision in his plea agreement.

agreed

to

an

Id. at 463.

moving party is not entitled to relief, the
judge must dismiss the motion and direct the
clerk to notify the moving party. . .
2 

Petitioner

filed

a

§

2255

motion

in

the

United

States

District Court for the Southern District of Florida, and the
motion was denied on March 28, 2011.

Rivera v. U.S., Nos. 10-

22290-CIV., 07-20825-CR, 2011 WL 1118668 (S.D. Fla. Mar. 28,
2011).

Petitioner next sought relief from his conviction and

sentence under 28 U.S.C. § 2241, from the United States District
Court, District of South Carolina.

Rivera v. Atkinson, Civ.

Action No. 1:12-cv-01226-JMC, 2012 WL 5873687 (D.S.C. Nov. 20,
2012).

His petition was denied.

Petitioner

next

tried

Id.

in

the

Southern

District

of

Mississippi, which dismissed his § 2241 petition for lack of
jurisdiction.

Rivera v. Mosley, 624 F. App’x 221 (5th Cir.

2015), cert. denied, 137 S.Ct. 224 (Oct. 3, 2016).

The Fifth

Circuit Court of Appeals affirmed the District Court on December
10, 2015, stating:
Rivera has now filed a total of four
unmeritorious § 2241 petitions attacking the
same convictions and sentences. He has also,
on
at
least
three
occasions,
sought
authorization to file a successive § 2255
motion. He is hereby WARNED that filing
frivolous or repetitive challenges to these
convictions or sentence in this court or in
any court subject to the jurisdiction of
this court will invite the imposition of
sanctions. Rivera is DIRECTED to review any
pending matters to ensure that they are not
frivolous or repetitive.
Id. at 222.
II.

DISCUSSION
3 

In the Third Circuit, the exception to the general rule that
a challenge to a conviction or sentence must be brought under 28
U.S.C. § 2255 in the sentencing court has only been applied
“where

the

petitioner

was

in

the

‘unusual

position’

of

a

prisoner with no prior opportunity to challenge his conviction
for a crime that an intervening change in substantive law could
negate with retroactive application.” Okereke v. U.S., 307 F.3d
117, 120 (3d Cir. 2002) (quoting In re Dorsainvil, 119 F.3d 245,
251 (3d Cir. 1997)).
The present petition is one of many attempts by Petitioner
to challenge his 2008 conviction and sentence imposed by the
U.S.

District

Court

for

the

Southern

District

of

Florida.

Petitioner has not heeded the warning of the Fifth Circuit Court
of Appeals not to file repetitive challenges to his conviction
and sentence, which is precisely what he has done here.
Pet., ECF No. 1; Petr’s Mem., ECF No. 1-2.)

(See

His bare allegation

that § 2255 is an inadequate or ineffective remedy to challenge
his conviction and sentence is frivolous.
III. CONCLUSION
The

Court

lacks

jurisdiction

under 28 U.S.C. § 2241.

over

Petitioner’s

petition

For the reasons discussed above, it is

not in the interest of justice to construe the petition as a
second

or

successive

§

2255

motion

4 

and

transfer

it

to

the

Eleventh

Court

of

Appeals,

pursuant

to

28

U.S.C.

§

1631.2

Therefore, the Court will dismiss the § 2241 petition for lack
of jurisdiction.

An appropriate Order follows.
s/Renée Marie Bumb__________
RENÉE MARIE BUMB
United States District Judge
Dated: April 10, 2017

2

28 U.S.C. § 1631 provides in relevant part
[w]henever a civil action is filed in a
court . . . and that court finds that there
is a want of jurisdiction, the court shall,
if it is in the interest of justice,
transfer such action or appeal to any other
such court in which the action or appeal
could have been brought at the time it was
filed . . .
5