Filing 2

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

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  NOT FOR PUBLICATION UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY CAMDEN VICINAGE ________________________ RODNEY L. WYATT, Jr., Petitioner, v. WARDEN FCI FORT DIX, Respondent. ________________________ : : : : : : : : : : : : 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   

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