WYATT v. WARDEN FCI FORT DIX

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NOT FOR PUBLICATION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
________________________
RODNEY L. WYATT, Jr.,
Petitioner,
v.

WARDEN FCI FORT DIX,
Respondent.
________________________

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Civ. No. 17-1335 (RMB)

OPINION

BUMB, United States District Judge
Petitioner Rodney L. Wyatt, Jr., 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 27, 2017.
(Pet.,

ECF

No.

1.)

Petitioner

contends

that

his

prior

convictions do not qualify him as a career offender, and he
seeks resentencing.

(Mem. of Law in Supp. of Pet. for a Writ of

Habeas Corpus under 28 U.S.C. § 2241 (“Petr’s Mem.”) ECF No. 1-1
at 2.)

Petitioner asserts that jurisdiction is proper under 28

U.S.C. § 2241 because a motion to vacate under 28 U.S.C. § 2255
is

inadequate

sentence.

or

ineffective

to

test

the

legality

of

his

(Id. at 1.)

Pursuant to Rule 4 of the Rules Governing Section 2254

Cases in the United States District Courts, applicable to § 2241
under Rule 1, the scope of the rules, a district judge must
promptly examine a petition, and “[i]f it plainly appears from
the petition and any attached exhibits that the petitioner is
not entitled to relief in the district court, the judge must
dismiss

the

petition

and

direct

the

Clerk

to

notify

the

petitioner.”

For the reasons discussed below, the Court will

construe

petition

correct

the

sentence

under

as

a

28

motion
U.S.C.

to
§

vacate,

2255,

and

set

aside

transfer

or
the

petition to the Fourth Circuit Court of Appeals.
I.

BACKGROUND
Petitioner

is

serving

a

federal

sentence

upon

his

conviction and sentencing on September 14, 2009, in the United
States

District

(Pet.,

ECF

No.

Court
1,

for

¶4.)

the

Eastern

Petitioner,

District
who

of

pled

Virginia.
guilty

to

conspiracy to distribute fifty grams or more of a substance
containing a detectable amount of cocaine base and 500 grams of
more of cocaine hydrochloride, did not file a direct appeal.
U.S. v. Wyatt, 3:09CR133, 2015 WL 2169515, at *1 (E.D. Va. May
8, 2015). Petitioner filed a § 2255 motion in the United States
District Court for the Eastern District of Virginia on May 29,
2012.

Id.

The court dismissed the § 2255 motion because it was

barred by the one-year statute of limitations.

Id. at *2.

Petitioner filed a second § 2255 motion in the District
2 

Court for the Eastern District of Virginia on or about June 27,
2016.

United States v. Wyatt, 3:09CR133, 2016 WL 3912033, at *1
The court noted that  on July 7, 2016,

(E.D. Va. July 19, 2016).
the

Fourth

Circuit

Court

of

Appeals

denied

Petitioner to file a successive § 2255 motion.

permission

for

Id. Therefore,

the court denied the § 2255 motion for want of jurisdiction.
Id.

Petitioner filed a third § 2255 motion on October 6, 2016,

and it was denied the same day.

(Petr’s Mem., ECF No. 1-1 at

4.)
II.

DISCUSSION
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 Third Circuit has not extended this
exception to include situations where a prisoner is challenging
a

sentencing

enhancement

substantive law.
to

sentencing

based

on

an

intervening

change

in

Id. (refusing to extend Dorsainvil exception

challenge

under

Apprendi);

Rodriguez

v.

Warden

Lewisburg USP, Nos. 15-3555, 15-3570, 2016 WL 1127869, at *2 (3d
3 

Cir. Mar. 23, 2016) (refusing to extend Dorsainvil exception to
sentencing challenge under Alleyne v. United States, 133 S.Ct.
2151 (2013)).
Here, Petitioner challenges the basis for his sentencing
enhancement under the career offender guidelines, pursuant to
United States v. Mathis, 136 S.Ct. 2243 (2016).
ECF No. 1-1 at 15-17.)

(Petr’s Mem.,

This Court lacks jurisdiction under 28

U.S.C. § 2241, because Petitioner was not convicted for conduct
that the Supreme Court later deemed not to be criminal.

See

Okereke, 307 F.3d at 120 (distinguishing between changes in law
that potentially made conduct non-criminal from changes in the
law that deal only with sentencing).
III. CONCLUSION
Petitioner has already brought multiple motions to vacate,
set

aside

or

correct

a

sentence

under

28

U.S.C.

§

2255.

Therefore, he must seek permission from the Fourth Circuit Court
of Appeals to bring a second or successive petition under 28
U.S.C. § 2255(h). This Court will construe the present petition
as

raised

justice,

under
will

28

U.S.C.

transfer

it

§

2255,

to

the

and,

in

Fourth

the

interest

Circuit

Appeals, pursuant to 28 U.S.C. § 1631.1

1

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
4 

Court

of
of

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

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