CANINI v. UNITED STATES OF AMERICA
OPINION FILED. Signed by Judge Noel L. Hillman on 7/6/17. (js)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
UNITED STATES OF AMERICA,
Civ. No. 17-1220 (NLH)
Federal Correctional Institution
P.O. Box 420
Fairton, NJ 08320
Petitioner Pro se
HILLMAN, District Judge
Petitioner Ruben Canini, a prisoner confined at the Federal
Correctional Institution (“FCI”) in Fairton, New Jersey, filed
this writ of habeas corpus under 28 U.S.C. § 2241, challenging a
sentencing enhancement. (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. § 2243.
For the reasons set forth
below, the Petition will be dismissed.1
The United States District Court for the Southern District
of New York summarized the procedural history of Petitioner’s
criminal case as follows:
On June 15, 2006, Canini was convicted by a
jury of one count of conspiracy to distribute
one kilogram of heroin and two counts of
distributing and possessing with intent to
distribute heroin. He has been quite diligent
in attacking his conviction. After trial, he
moved for a judgment of acquittal and a new
insufficient evidence to convict him and that
the testimony of two cooperating witnesses
should be disregarded as inconsistent. The
Court denied these motions. Thereafter, Canini
was sentenced to 240 months of incarceration.
On January 22, 2009, the Second Circuit
affirmed Canini's conviction.
Canini then commenced a series of attacks on
his conviction. On May 14, 2010, Canini filed
a 28 U.S.C. § 2255 petition, seeking to vacate
his sentence because of ineffective assistance
of counsel, which the Court denied on March
12, 2012. The Court also denied Canini's
motion to amend his section 2255 petition,
finding that amendment would be futile because
the claim, even as amended, failed on the
merits. On September 25, 2013, Canini filed a
second 2255 petition, arguing that the Court's
jury instruction regarding conspiracy denied
him due process of law, and that his Sixth
The Court initially administratively terminated this case for
failure to submit the filing fee and to name a proper
respondent. (ECF Nos. 2, 3.) Petitioner thereafter submitted
the filing fee and requested to amend the Petition to name the
Warden as respondent. (ECF No. 4.)
Amendment right to a jury trial was violated
because the Court calculated his offense level
based on facts not found by the jury in
violation of Alleyne v. U.S., 133 S.Ct. 2151
(2013). The Court transferred this motion to
the Second Circuit pursuant to 28 U.S.C. §
1631, because the Court lacked jurisdiction
over Canini's successive petition. The Second
Circuit denied the petition because Canini did
not file the application within the specified
Canini v. United States, No. 04-283, 2015 WL 4509684, at *1
(S.D.N.Y. July 24, 2015) (internal citations omitted).
Petitioner then filed a Petition for a Writ of Coram Nobis/Writ
of Audita Querela, which was denied by the district court in
Petitioner also states that he filed a motion for a
reduction in sentence pursuant to Amendment 782, which was
denied on April 27, 2016.
He further states that on
June 28, 2016, he filed a second 2255 motion pursuant to United
States v. Johnson, 135 S. Ct. 2551 (2015), which was still
pending at the time he filed this matter.
In January 2017, Petitioner filed the instant Petition.
(ECF No. 1.)
Petitioner argues that “he is actually innocent of
Title 21 U.S.C. § 851 because it relied upon a prior New York
State felony drug conviction for Attempt Criminal Sale of a
Controlled. Substance in the Third Degree that was replaced by a
youthful offender finding pursuant to New York Criminal
Procedural law Section 720.20(3)(establishing the procedures for
a youthful offender determination).”
With respect to screening the instant habeas petition, 28
U.S.C. § 2243 provides in relevant part:
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.
As Petitioner is proceeding pro se, his petition is held to
less stringent standards than those pleadings drafted by
See Rainey v. Varner, 603 F.3d 189, 198 (3d Cir. 2010)
(“It is the policy of the courts to give a liberal construction
to pro se habeas petitions”) (internal quotation marks and
Nevertheless, “a district court is
authorized to dismiss a [habeas] petition summarily when it
plainly appears from the face of the petition and any exhibits
annexed to it that the petitioner is not entitled to relief in
the district court[.]”
Lonchar v. Thomas, 517 U.S. 314, 320
Petitioner is seeking to have this Court review the
judgment of conviction and sentence entered by the Southern
District of New York in these habeas proceedings.
challenge to the validity of a federal conviction or sentence
must be brought under 28 U.S.C. § 2255.
See Jackman v. Shartle,
535 F. App'x 87, 88 (3d Cir. 2013) (citing Okereke v. United
States, 307 F.3d 117, 120 (3d Cir. 2002)).
This is true because
§ 2255 prohibits a district court from entertaining a challenge
to a prisoner's federal sentence through § 2241 unless the
remedy under § 2255 is “inadequate or ineffective.”
U.S.C. § 2255(e).
Indeed, § 2255(e) states that:
[a]n application for a writ of habeas corpus
in behalf of a prisoner who is authorized to
apply for relief by motion pursuant to this
section, shall not be entertained if it
appears that the applicant has failed to apply
for relief, by motion, to the court which
sentenced him, or that such a court has denied
him relief, unless it also appears that the
remedy by the motion is inadequate or
ineffective to test the legality of his
28 U.S.C. § 2255(e).
A § 2255 motion is “inadequate or
ineffective,” which permits a petitioner to resort to a § 2241
petition, “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
Cradle v. U.S. ex rel. Miner, 290 F.3d 536,
538 (3d Cir. 2002) (citations omitted).
2255 is not inadequate or ineffective merely because the
sentencing court does not grant relief, the one-year statute of
limitations has expired, or the petitioner is unable to meet the
stringent gatekeeping requirements of ... § 2255.”
F.3d at 539 (citations omitted).
“It is the inefficacy of the
remedy, not the personal inability to use it, that is
Id. at 538 (citation omitted). “The provision
exists to ensure that petitioners have a fair opportunity to
seek collateral relief, not to enable them to evade procedural
Id. at 539 (citing In re Dorsainvil, 119 F.3d
245, 251–52 (3d Cir. 1997)).
In Dorsainvil, the Third Circuit held that the remedy
provided by § 2255 is “inadequate or ineffective,” permitting
resort to § 2241, 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[.]”
119 F.3d at 251.
Nevertheless, the Third Circuit emphasized that its holding was
not suggesting that a § 2255 motion was “inadequate or
ineffective” merely because a petitioner is unable to meet the
strict gatekeeping requirements of § 2255.
valve,” as stated in Dorsainvil, is a narrow one and has been
held to apply in situations where the prisoner has had no prior
opportunity to challenge his conviction for a crime later deemed
to be non-criminal by an intervening change in the law.
Okereke, 307 F.3d at 120 (citing Dorsainvil, 119 F.3d at 251).
Here, Petitioner does not allege facts which bring him
within the Dorsainvil exception. His claims do 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 relies on a 2006 Third Circuit case, United States
v. Huggins, 467 F.3d 359, to argue that “because his prior New
York State Attempt Criminal Sale of a Controlled Substance
Offense, was designated under the Youthful Offender Act, and
petitioner was adjudicated as such under Juvenile proceedings it
cannot qualify as a prior final conviction under Section 841
(b)(1) [and he is therefore] actually innocent of the statute 21
U.S.C. § 851 enhancement.”
However, the Third
Circuit has not extended the Dorsainvil exception to include
situations where a prisoner is challenging a sentencing
See Murray v. Kirby, No. 17-3585, 2017 WL 2426861,
at *2 (D.N.J. June 5, 2017) (collecting cases).
Petitioner had many previous opportunities to challenge his
conviction on the basis of the Huggins decision.
was issued in October 2006, while Petitioner’s case was still on
direct appeal, and substantially before all of his various
collateral attacks on his sentence.
Accordingly, this Court lacks jurisdiction to consider 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.
As discussed above,
Petitioner has already filed a § 2255, and therefore he must
receive authorization from the Second Circuit before filing
See 28 U.S.C. § 2255(h).
Because it appears that
any such § 2255 petition would be time barred, this Court finds
that it is not in the interest of justice to transfer the
Petition to the Second Circuit for its consideration as a
request to file a second or successive § 2255 motion.2
For the foregoing reasons, the Petition will be summarily
dismissed due to a lack of jurisdiction. An appropriate order
Dated: July 6, 2017
At Camden, New Jersey
s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.
The Court’s decision not to transfer the instant Petition does
not preclude Petitioner from filing a request with the Second
Circuit on his own.
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