JOHNSON v. ORTIZ
Filing
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OPINION FILED. Signed by Judge Robert B. Kugler on 7/10/17. (js)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
_________________________________________
BERT WILLIAM JOHNSON, III,
:
:
Petitioner,
:
Civ. No. 17-2776 (RBK)
:
v.
:
:
DAVID E. ORTIZ,
:
OPINION
:
Respondent.
:
_________________________________________ :
ROBERT B. KUGLER, U.S.D.J.
I.
INTRODUCTION
Petitioner is a federal prisoner proceeding pro se with a petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2241.
Petitioner argues in his habeas petition that he was improperly labeled as a career
criminal such that his sentence was incorrectly enhanced. Thus, he claims that he is entitled to
resentencing. For the following reasons, the habeas petition will be summarily dismissed.
II.
BACKGROUND
Petitioner pled guilty in 2010 in the United States District Court for the Western District
of Pennsylvania to
one count of conspiracy to distribute and possess with intent to
distribute five grams or more of cocaine base, in violation of 21
U.S.C. § 846; three counts of distribution of less than five grams of
cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(c);
and one count of possession with intent to distribute five grams or
more of cocaine base, in violation of §§ 841(a)(1) and
(b)(1)(B)(iii).
United States v. Johnson, 456 F. App’x 122, 124 (3d Cir. 2011). He was ultimately sentenced to
180 months imprisonment. See id. The United States Court of Appeals for the Third Circuit
affirmed the judgment of conviction in 2011. See id. at 123.
Thereafter, in 2013, petitioner filed a motion to vacate, set aside or correct his sentence
pursuant to 28 U.S.C. § 2255 in the Western District of Pennsylvania. In 2015, the Western
District of Pennsylvania denied petitioner’s § 2255 motion. (See W.D. Pa. Crim. No. 10-000701, Dkt. No. 257)
In April, 2017, petitioner filed this habeas petition under 28 U.S.C. § 2241. Citing to
Descamps v. United States, 133 S. Ct. 2276 (2013), Mathis v. United States, 136 S. Ct. 2243
(2016) and United States v. Cabrera, 660 F. App’x 126 (3d Cir. 2016), petitioner argues that he
was improperly given a career offender sentencing enhancement under the Sentencing
Guidelines. He requests that his sentence be vacated for resentencing.
III.
STANDARD FOR SUA SPONTE SCREENING OF HABEAS PETITION
With respect to screening the instant habeas petition, 28 U.S.C. § 2243 provides in
relevant part:
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.
As petitioner is proceeding pro se, his petition is held to less stringent standards than those
pleadings drafted by lawyers. See Rainey v. Varner, 603 F.3d 189, 198 (3d Cir. 2010) (“It is the
policy of the courts to give a liberal construction to pro se habeas petitions.”) (internal quotation
marks and citation omitted); United States v. Otero, 502 F.3d 331, 334 (3d Cir. 2007) ( “we
construe pro se pleadings liberally.”) (citing Haines v. Kerner, 404 U.S. 519, 520, 92 S. Ct. 594,
30 L.Ed.2d 652 (1972)). Nevertheless, “a district court is authorized to dismiss a [habeas]
petition summarily when it plainly appears from the face of the petition and any exhibits annexed
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to it that the petitioner is not entitled to relief in the district court[.]” Lonchar v. Thomas, 517
U.S. 314, 320 (1996).
IV.
DISCUSSION
Petitioner seeks to have this Court review the criminal judgment and sentence entered by
the Western District of Pennsylvania in this § 2241 habeas petition. Generally, 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) (citing Okereke v. United States, 307
F.3d 117, 120 (3d Cir. 2002)). This is generally true because § 2255 prohibits a district court
from entertaining a challenge to a prisoner's federal sentence through § 2241 unless the remedy
under § 2255 is “inadequate or ineffective.” See 28 U.S.C. § 2255(e). Indeed, § 2255(e) states
that:
[a]n application for a writ of habeas corpus in behalf of a prisoner
who is authorized to apply for relief by motion pursuant to this
section, shall not be entertained if it appears that the applicant has
failed to apply for relief, by motion, to the court which sentenced
him, or that such a court has denied him relief, unless it also
appears that the remedy by the motion is inadequate or ineffective
to test the legality of his detention.
28 U.S.C. § 2255(e). A § 2255 motion is “inadequate or ineffective,” which permits a petitioner
to resort to a § 2241 petition, “only where the petitioner demonstrates that some limitation or
procedure would prevent a § 2255 proceeding from affording him a full hearing and adjudication
of his wrongful detention claim.” Cradle v. U.S. ex rel. Miner, 290 F.3d 536, 538 (3d Cir. 2002)
(citations omitted). However, “[s]ection 2255 is not inadequate or ineffective merely because the
sentencing court does not grant relief, the one-year statute of limitations has expired, or the
petitioner is unable to meet the stringent gatekeeping requirements of ... § 2255.” Cradle, 290
F.3d at 539 (citations omitted). “It is the inefficacy of the remedy, not the personal inability to
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use it, that is determinative.” Id. at 538 (citation omitted). “The provision exists to ensure that
petitioners have a fair opportunity to seek collateral relief, not to enable them to evade
procedural requirements.” Id. at 539 (citing In re Dorsainvil, 119 F.3d 245, 251-52 (3d Cir.
1997)).
In Dorsainvil, the Third Circuit held that the remedy provided by § 2255 is “inadequate
or ineffective,” permitting resort to § 2241, 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[.]” 119 F.3d at 251. Nevertheless, the Third
Circuit emphasized that its holding was not suggesting that a § 2255 motion was “inadequate or
ineffective” merely because a petitioner is unable to meet the strict gatekeeping requirements of
§ 2255. See id. The “safety valve,” as stated in Dorsainvil, is a narrow one and has been held to
apply in situations where the prisoner has had no prior opportunity to challenge his conviction
for a crime later deemed to be non-criminal by an intervening change in the law. See Okereke,
307 F.3d at 120 (citing Dorsainvil, 119 F.3d at 251).
Petitioner does not allege facts to bring him within the Dorsainvil exception. 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 center on the purported
impropriety of his sentence, not the crimes for which he was convicted in the Western District of
Pennsylvania. This does not place him within the Dorsainvil exception to permit this habeas
petition to proceed past screening. 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.
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Shartle, 526 F. App'x 150, 152 (3d Cir. 2013) (“Here, McIntosh is challenging his designation 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); United States v. Brown, 456 F. App'x 79, 81 (3d Cir. 2012) (“We have held that § 2255's
‘safety valve’ applies only in rare circumstances, such as when an intervening change in the
statute under which the petitioner was convicted renders the petitioner's conduct non-criminal.
Brown has not satisfied that standard here, as 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); Selby v. Scism, 453 F. App'x 266, 268 (3d Cir.
2011) (“Selby does not argue that he is innocent of the offense for which he was convicted; he
argues that he is “innocent” of a sentencing enhancement because of an intervening change in
law. Accordingly, the exception described in In re Dorsainvil does not apply.”); Wyatt v. Warden
FCI Fort Dix, No. 17-1335, 2017 WL 1367239, at *2 (D.N.J. Apr. 10, 2017) (finding court lacks
jurisdiction under § 2241 to petitioner who is challenging his sentencing enhancement under
Mathis); Seaton v. Hollingsworth, No. 14-2331, 2014 WL 2196846, at *4 (D.N.J. May 27, 2014)
(noting that petitioner’s reliance on Descamps to establish that his § 2241 is proper is incorrect
because “Descamps does not render non-criminal petitioner’s conviction . . . as it only relates to
the sentence that petitioner received for his crimes.”) (emphasis in original).1 Therefore, § 2241
is not the proper avenue for petitioner to pursue his claims.
Petitioner’s reliance on Cabrera, 660 F. App’x 126, in attempting to show that he has properly
brought this action as a § 2241 habeas corpus action is misplaced as well because that case
involved a direct appeal as opposed to one on habeas review under § 2241. Additionally,
petitioner’s citation to Hill v. Masters, 836 F.3d 591 (6th Cir. 2016) is also unmoving. First, Hill
is not binding on this Court as compared to Dorsainvil which is binding. Second, and by way of
example only, while Hill involved a petitioner bringing a § 2241 habeas petition, the Sixth
Circuit expressly noted in authorizing the habeas petition under § 2241 that it only applied to
“prisoners who were sentenced under the mandatory guidelines regime pre-United States v.
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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, this Court will
not transfer this action to the Third Circuit for its consideration as a request to file a second or
successive § 2255 motion.2
V.
CONCLUSION
For the foregoing reasons, the habeas petition will be summarily dismissed due to a lack
of jurisdiction. An appropriate order will be entered.
DATED: July 10, 2017
s/Robert B. Kugler
ROBERT B. KUGLER
United States District Judge
Booker, 543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005)[.]” 836 F.3d at 599-600. In this
case, however, petitioner was convicted and sentenced post-Booker.
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Nothing in this opinion should be construed by petitioner as preventing him from filing a
request to file a second or successive § 2255 motion in the Third Circuit for that Court’s
consideration in the first instance.
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