FELDER v. KIRBY

Filing 8

OPINION FILED. Signed by Judge Jerome B. Simandle on 8/30/17. (js)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

JOHN FELDER,

HONORABLE JEROME B. SIMANDLE
Petitioner,
Civil Action
No. 17-1534 (JBS)

v.
WARDEN MARK KIRBY,

OPINION
Respondent.

APPEARANCES:
John Felder, Petitioner pro se
#60530-066
FCI Fairton
P.O. Box 420
Fairton, NJ 08320
SIMANDLE, District Judge:
INTRODUCTION
John Felder, a federal prisoner confined at FCI Fairton,
New Jersey, has filed an amended petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2241. Amended Petition, Docket
Entry 7. For the reasons expressed below, this Court will treat
this as a motion to file a second or successive habeas petition
under 28 U.S.C. § 2255(h) and transfer it to the Third Circuit
Court of Appeals.
BACKGROUND
Petitioner was sentenced in the Eastern District of
Pennsylvania (“Eastern District”) on June 9, 2008 after being

convicted by a jury of drug and firearm offenses. Amended
Petition ¶ 6; see also United States v. Felder, 529 F. App'x
111, 111 (3d Cir. 2013) (per curiam).1 The Court of Appeals for
the Third Circuit affirmed the convictions and 264-month
sentence. United States v. Felder, 389 F. App’x 111 (3d Cir.
2010).
In 2011, Petitioner filed a motion pursuant to 28 U.S.C. §
2255 in the Eastern District challenging his convictions.
Memorandum of Law at 3. However, the court treated his § 2255
motion as a motion for a new trial pursuant to Federal Rule of
Criminal Procedure 33 and denied relief. Id. The Third Circuit
affirmed the recharacterization and result. Felder, 529 F. App'x
at 112-13. Petitioner later filed a § 2255 motion raising
arguments pursuant to Descamps v. United States, 133 S. Ct. 2276
(2013). Memorandum of Law at 3. The Eastern District denied the
motion. Id.
Petitioner filed this § 2241 petition citing Mathis v.
United States, 136 S. Ct. 2243 (2016), and Holt v. United
States, 843 F.3d 720 (7th Cir. 2016) on March 7, 2017. This
Court originally administratively terminated the petition on
March 8, 2017 as Petitioner had not paid the filing fee or used

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“[A] court may take judicial notice of a prior judicial
opinion.” McTernan v. City of York, 577 F.3d 521, 525 (3d Cir.
2009).
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the § 2241 form provided by the Clerk. Docket Entry 2.
Petitioner paid the filing fee on May 8, 2017, but did not
submit the correct form until July 10, 2017. As Petitioner has
paid the filing fee and submitted the correct form, the Court
will grant his motion to reopen the matter for review.
Petitioner asks the Court to resentence him without the
career offender enhancement because his prior convictions do not
qualify him as a career offender.
STANDARD OF REVIEW
Petitioner brings this petition as a pro se litigant. The
Court has an obligation to liberally construe pro se pleadings
and to hold them to less stringent standards than more formal
pleadings drafted by lawyers. Erickson v. Pardus, 551 U.S. 89,
94 (2007); Higgs v. Attorney Gen. of the U.S., 655 F.3d 333, 339
(3d Cir. 2011), as amended (Sept. 19, 2011) (citing Estelle v.
Gamble, 429 U.S. 97, 106 (1976)). A pro se habeas petition and
any supporting submissions must be construed liberally and with
a measure of tolerance. See Royce v. Hahn, 151 F.3d 116, 118 (3d
Cir. 1998); Lewis v. Attorney Gen., 878 F.2d 714, 721–22 (3d
Cir. 1989); United States v. Brierley, 414 F.2d 552, 555 (3d
Cir. 1969), cert. denied, 399 U.S. 912 (1970).
Nevertheless, a federal district court must dismiss a
habeas corpus petition if it appears from the face of the
petition that the petitioner is not entitled to relief. 28
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U.S.C. § 2254 Rule 4 (made applicable through Rule 1(b)); see
also McFarland v. Scott, 512 U.S. 849, 856 (1994); Siers v.
Ryan, 773 F.2d 37, 45 (3d Cir. 1985), cert. denied, 490 U.S.
1025 (1989).
ANALYSIS
Section 2241 “confers habeas jurisdiction to hear the
petition of a federal prisoner who is challenging not the
validity but the execution of his sentence.” Coady v. Vaughn,
251 F.3d 480, 485 (3d Cir. 2001). A 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) (per curiam) (citing Okereke v. United States, 307 F.3d
117, 120 (3d Cir. 2002)). “[Section] 2255 expressly prohibits a
district court from considering a challenge to a prisoner's
federal sentence under § 2241 unless the remedy under § 2255 is
‘inadequate or ineffective to test the legality of his
detention.’” Snyder v. Dix, 588 F. App’x 205, 206 (3d Cir. 2015)
(quoting 28 U.S.C. § 2255(e)); see also In re Dorsainvil, 119
F.3d 245, 249 (3d Cir. 1997).
Petitioner does not argue that he is innocent of the
firearm and drug offenses for which he was convicted. Instead,
he asserts that he no longer qualifies as a career offender due
to intervening Supreme Court decisions. This claim does not fall
within the Dorsainvil exception. See United States v. Brown, 456
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F. Appx. 79, 81 (3d Cir. 2012) (per curiam) (holding prisoner
not entitled to proceed under § 2255's “safety valve” when he
“makes no allegation that he is actually innocent of the crime
for which he was convicted, but instead asserts only that he is
‘innocent’ of being a career offender”) (internal citation
omitted), cert. denied, 133 S. Ct. 201 (2012). Accordingly, this
Court lacks jurisdiction to entertain this challenge to
Petitioner's conviction under § 2241.
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. Petitioner must seek permission
from the United States Court of Appeals for the Third Circuit to
bring a second or successive petition under 28 U.S.C. § 2255(h)
in the Eastern District of Pennsylvania. See also 28 U.S.C. §
2244. This Court will construe the present petition as being
raised under 28 U.S.C. § 2255, and, in the interest of justice2,
will transfer it to the Third Circuit pursuant to 28 U.S.C. §
1631.

2

The Court exercises its discretion to transfer this matter
under § 1631 rather than to dismiss it because petitioner may
set forth a plausible claim under Mathis v. United States,
supra, and also to preserve petitioner's filing date of March 7,
2017, for statute of limitations purposes.
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CONCLUSION
For the reasons stated above, the motion to reopen is
granted. The Court considers this petition as being a motion
under 28 U.S.C. § 2255(h) as a second or successive petition,
and transfers it to the Third Circuit for consideration.
An accompanying Order will be entered.

August 30, 2017
Date

s/ Jerome B. Simandle
JEROME B. SIMANDLE
U.S. District Judge

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