SAVAGE v. KIRBY

Filing 5

OPINION. Signed by Judge Noel L. Hillman on 11/22/2017. (dmr)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
______________________________
:
CLIFTON SAVAGE,
:
:
Petitioner,
:
Civ. No. 17-1985 (NLH)
:
v.
:
OPINION
:
WARDEN MARK KIRBY,
:
:
Respondent.
:
______________________________:
APPEARANCES:
Clifton Savage
64227-066
Fairton
Federal Correctional Institution
P.O. Box 420
Fairton, NJ 08320
Petitioner Pro se
HILLMAN, District Judge
Petitioner Clifton Savage, 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.

I.

BACKGROUND
On April 26, 2010, after a jury trial before the United

States District Court for the Eastern District of Pennsylvania,
Petitioner was convicted of one count of possession of a firearm
by a convicted felon under 18 U.S.C. §§ 922(g) and 924(e).
v. Savage, Criminal Action No. 09-600 (E.D. Pa. 2010.)

U.S.

On

January 3, 2011, the court sentenced him to 180 months’
incarceration.

Id.

Petitioner filed a direct appeal

challenging the constitutionality of § 922(g).
Criminal Action No. 11-1014 (3d Cir. 2011).

U.S. v. Savage,
On September 9,

2011, the Court of Appeals for the Third Circuit summarily
affirmed his conviction.

Id.

The United States Supreme Court

denied his petition for certiorari on January 9, 2012.

Savage

v. United States, 132 S. Ct. 1057 (2012).
On October 29, 2015, Petitioner filed a motion to vacate,
set aside, or correct sentence under 28 U.S.C. § 2255 with the
district court in the Eastern District of Pennsylvania.
v. U.S., Civil Action No. 15-5903 (E.D. Pa. 2015).

Savage

He argued

that the Supreme Court’s decision in Johnson v. United States,
135 S. Ct. 2551 (2015), rendered 18 U.S.C. §924(e)(2)(B)
unconstitutional and invalidated his sentence.

Id.

The

sentencing court denied relief and it does not appear that he
filed an appeal with the Third Circuit.

2

Id.

On March 20, 2017, Petitioner filed an application with the
Third Circuit for permission to file a second or successive §
2255 petition in light of Johnson and Mathis v. United States,
136 S. Ct. 2243 (2016).

In Re: Clifton Savage, Civil Action No.

17-1667 (3d Cir. 2017).

The Third Circuit denied permission.

Id.
Petitioner appears to have filed the instant habeas
petition at the same time as his application for permission to
file a second or successive § 2255 petition with the Third
Circuit.

(ECF No. 1.)

The brief filed in support of the

instant § 2241 Petition is nearly identical to the brief filed
with the Third Circuit.

In both, Petitioner argues that his

sentence enhancement under the Armed Career Criminal Act was
rendered unconstitutional by the Supreme Court’s holdings in
Johnson and Mathis.
II.
A.

(Id.)

DISCUSSION
Legal Standard
United States Code Title 28, Section 2243, provides in

relevant part as follows:
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.

3

A pro se pleading is held to less stringent standards than more
formal pleadings drafted by lawyers.

Estelle v. Gamble, 429

U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520 (1972).
A pro se habeas petition must be construed liberally. See
Hunterson v. DiSabato, 308 F.3d 236, 243 (3d Cir. 2002).
Nevertheless, a federal district court can dismiss a habeas
corpus petition if it appears from the face of the petition that
the petitioner is not entitled to relief.

See Denny v. Schultz,

708 F.3d 140, 148 n. 3 (3d Cir. 2013); see also 28 U.S.C. §§
2243, 2255.
B. Analysis
As noted by the Court of Appeals for the Third Circuit in
In re Dorsainvil, 119 F.3d 245, 249 (3d Cir. 1997), a motion to
vacate, set aside, or correct sentence under 28 U.S.C. § 2255
has been the “usual avenue” for federal prisoners seeking to
challenge the legality of their confinement.

See also Okereke

v. United States, 307 F.3d 117, 120 (3d Cir. 2002); United
States v. McKeithan, 437 F. App’x 148, 150 (3d Cir. 2011);
United States v. Walker, 980 F. Supp. 144, 145–46 (E.D. Pa.
1997) (challenges to a sentence as imposed should be brought
under § 2255, while challenges to the manner in which a sentence
is executed should be brought under § 2241).
Section 2255, however, contains a safety valve where “it
appears that the remedy by motion is inadequate or ineffective
4

to test the legality of [Petitioner's] detention.”
U.S.C. § 2255(e).

See 28

In Dorsainvil, the Third Circuit held that

the remedy provided by § 2255 is “inadequate or ineffective,”
permitting resort to § 2241 (a statute without timeliness or
successive petition limitations), 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.”
Dorsainvil, 119 F.3d at 251.
The court emphasized, however, that its holding was not
intended to suggest that § 2255 would be considered “inadequate
or ineffective” merely because a petitioner is unable to meet
the stringent limitations or gatekeeping requirements of § 2255.
Id.

To the contrary, the court was persuaded that § 2255 was

“inadequate or ineffective” in the unusual circumstances
presented in Dorsainvil because it would have been a complete
miscarriage of justice to confine a prisoner for conduct that,
based upon an intervening interpretation of the statute of
conviction by the United States Supreme Court, may not have been
criminal conduct at all.

Id. at 251-52.

The Court of Appeals for the Third Circuit subsequently
emphasized the narrowness of its Dorsainvil holding when it
rejected a district court's conclusion that § 2255 was
“inadequate or ineffective” to address a claim based on Apprendi
5

v. New Jersey, 530 U.S. 466, 490 (2000), an intervening decision
which held that, “[o]ther than the fact of a prior conviction,
any fact that increases the penalty for a crime beyond the
prescribed statutory maximum must be submitted to a jury, and
proved beyond a reasonable doubt.”

See Okereke, 307 F.3d at

120-21 (in which the petitioner had been sentenced based upon a
drug quantity determined at sentencing by a judge using the
preponderance of evidence standard).

The mere fact that a claim

is time barred does not render § 2255 an inadequate or
ineffective remedy.

See Cradle v. United States, 290 F.3d 536,

539 (3d Cir. 2002).
Here, Petitioner’s claims do not fall into the Dorsainvil
exception.

Specifically, he does 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,

his claims relate to the purported impropriety of his sentence,
not the crimes for which he was convicted.

See Scott v.

Shartle, 574 F. App'x 152, 155 (3d Cir. 2014) (“[B]ecause
[petitioner] is challenging his career offender designation and
is not claiming that he is now innocent of the predicate
offense, he does not fall within the ‘safety valve’ exception
created in In re Dorsainvil and cannot proceed under § 2241”)
(citation omitted); McIntosh v. Shartle, 526 F. App'x 150, 152
(3d Cir. 2013) (“Here, McIntosh is challenging his designation
6

as a career offender. Thus, he does not fall within the
exception created in Dorsainvil and may not proceed under §
2241”) (citation omitted); Johnson v. Scism, 454 F. App'x 87, 88
(3d Cir. 2012) (same); Wyatt v. Warden FCI Fort Dix, No. 171335, 2017 WL 1367239 (D.N.J. Apr. 10, 2017) (finding court
lacks jurisdiction under § 2241 when petitioner is challenging
his sentencing enhancement under Mathis); Newman v. Kirby, No.
17-4653, 2017 WL 3080729 (D.N.J. July 19, 2017) (same); Coleman
v. Kirby, 2017 WL 3332262 (D.N.J. Aug. 4, 2017) (same).
Moreover, even if this Court had jurisdiction to consider
Petitioner’s claims, he would not be entitled to relief.
stated by the Third Circuit:
Petitioner’s
predicate
offenses
for
his
mandatory minimum sentence under the Armed
Career Criminal Act were four serious drug
offenses involving cocaine, see 35 Pa. Cons.
Stat. § 780-113(a)(30), and one conviction for
aggravated assault, see 18 Pa. Cons. Stat. §
2702(a)(1).
Petitioner’s
Armed
Career
Criminal Act sentence was not dependent on the
Armed Career Criminal Act’s residual clause.
See 18 U.S.C. § 924(e)(2)(B)(ii). The Supreme
Court’s holding in Johnson v. United States,
576 U.S. ____, 135 S. Ct. 2551 (2015), made
retroactive by Welch v. United States, ___
U.S. ____, 136 S. Ct. 1257 (2016), therefore
has no application to Petitioner’s case. Nor
can the Supreme Court’s decision in Mathis v.
United States, ___ U.S. ____, 136 S. Ct. 2243
(2016), support Petitioner’s application.
That case involved statutory interpretation,
not a new constitutional rule. See Dawkins v.
United States, 829 F.3d 549, 551 (7th Cir.
2016) (per curiam). Moreover, Mathis does not
apply to Petitioner’s circumstances: under the
7

As

modified categorical approach, his serious
drug
offenses,
at
least,
qualify
as
constituent convictions under the Armed Career
Criminal Act.
See United States v. Abbott,
748
F.3d
154,
159-60
(3d
Cir.
2014).
Petitioner otherwise cites no other recent,
relevant Supreme Court case and no newly
discovered evidence.
In Re: Clifton Savage, Civil Action No. 17-1667 (3d Cir. 2017).
Based on the foregoing, the Court finds that it lacks
jurisdiction under § 2241 over 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.

In this case, the Court will not

transfer the Petition to the Third Circuit for its consideration
as a request to file a second or successive § 2255 motion
because, as discussed above, the court has already denied that
request from Petitioner.

In Re: Clifton Savage, Civil Action

No. 17-1667 (3d Cir. 2017).
III. CONCLUSION
For the foregoing reasons, the Petition will be summarily
dismissed due to a lack of jurisdiction.

An appropriate order

follows.
Dated: November 22, 2017
At Camden, New Jersey

s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.

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