MCRAE v. ORTIZ

Filing 2

MEMORANDUM, OPINION. Signed by Judge Noel L. Hillman on 5/22/17. (jbk, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
______________________________
:
:
:
Petitioner,
:
:
v.
:
:
WARDEN DAVID ORTIZ,
:
:
Respondent.
:
______________________________:
TIVARUS MCRAE,

Civ. Action No. 17-2321 (NLH)

MEMORANDUM OPINION

IT APPEARING THAT:
1.

Petitioner Tivarus McRae (“Petitioner”) has filed a

Petition for a Writ of Habeas Corpus Pursuant to 28 U.S.C. §
2241 before this Court. (ECF No. 1.)
2.

Petitioner alleges that he was “unlawfully and/or

illegally placed in F.C.I. Estill on 12.15.1998 by United States
District Court, Eastern District of North Carolina- Western
Division, case number 5:98-CR-00037-012.5.”
3.

(Pet. ¶ 3.)

He further alleges that his imprisonment is “unlawful

and/or illegal in violation of the laws and Constitution for
[sic] the United States because: Petitioner cannot be
imprison[ed] for violating any of the crime(s) and/or offense(s)
stated in case number 5:98:CR-00037-012 because the United
States did not have jurisdiction over the land(s) of where the
alleged crime occurred pursuant to Title 40 U.S.C. Section 3112
(b).”

(Pet. ¶ 6.)

4.

Petitioner further alleges that his imprisonment is “in

violation of the Tenth Amendment, Ninth Amendment, Fifth
Amendment Due Process; Fourth Amendment “Unlawful Seizure”;
Eighth Amendment “Cruel and Unusual Punishment; Title 18 U.S.C.
Section 7/(3), 5, 13(a); Title 40 U.S.C. Section 3112(b),
Article 1, Section 8 clause 17 of the U.S. Const; Article 4,
Section 3, clause 2 of the U.S. Const.”
5.
Cases,

(Id.)

Pursuant to Rule 2(c) of the Rules Governing Section 2254
applicable

to

§

2241

cases

through

Rule

1(b),

“[t]he

petition must: (1) specify all the grounds for relief available to
the petitioner; (2) state the facts supporting each ground….”
Here, Petitioner has failed to specify his grounds for relief and
state the facts supporting said grounds.

As such, the Court will

require Petitioner to submit an amended petition which complies
with Rule 2(c).
6.

Should Petitioner decide to submit an amended petition,

the Court offers the following guidance.

To the extent Petitioner

is challenging the validity of his sentence, “motions pursuant to
28 U.S.C. § 2255 are the presumptive means by which federal
prisoners can challenge their convictions or sentences that are
allegedly in violation of the Constitution.”
States, 307 F.3d 117, 120 (3d Cir. 2002).

Okereke v. United

Motions pursuant to §

2255 are filed with the court that imposed the sentence.

28 U.S.C.

§ 2255(a).

Therefore, if Petitioner wishes to challenge his

conviction or sentence as imposed, he must file a § 2255 motion
with

the

federal

district

court

where

he

was

convicted

and

sentenced.
7.

To the extent Petitioner is challenging the execution

of a federal sentence, 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.”
Vaughn, 251 F.3d 480, 485 (3d Cir. 2001).

Coady v.

Should he choose to

file an amended Section 2241 petition challenging the execution
of his sentence, because Petitioner is confined at Fort Dix,
said petition would be properly before this Court.
8.

In light of the foregoing, the Court will

administratively terminate this matter. 1

If Petitioner is

challenging the validity of sentence or conviction, he must file
a Section 2255 petition before the district court where he was
convicted.

If Petitioner is challenging the execution of his

Such an administrative termination is not a “dismissal” for
purposes of the statute of limitations, and if the case is reopened pursuant to the terms of the accompanying Order, it is not
subject to the statute of limitations time bar if it was originally
submitted timely. See Houston v. Lack, 487 U.S. 266 (1988)
(prisoner mailbox rule); Papotto v. Hartford Life & Acc. Ins. Co.,
731 F.3d 265, 275-76 (3d Cir. 2013) (collecting cases and
explaining that a District Court retains jurisdiction over, and
can re-open, administratively closed cases).
1

sentence, and he wishes to re-open the instant matter, he must
submit an amended petition which clearly outlines his grounds
for relief and the facts supporting said grounds.
9.

An appropriate order follows.

Dated: May 22, 2017
At Camden, New Jersey

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