WRIGHT v. HARTUNIAN
OPINION. Signed by Judge Renee Marie Bumb on 7/6/2017. (dmr)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
RICHARD S. HARTUNIAN,
Civ. No. 17-3377 (RMB)
BUMB, United States District Judge
Petitioner, Jerrell Wright, 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 May 12, 2017.
Petitioner seeks to void his conviction and sentence,
entered by the United States District Court, Northern District
of New York on December 9, 2014.
(Id. at 1.)
Petitioner is presently serving a federal sentence in FCI
Petitioner did not pay the $5.00 filing fee or file an
application to proceed without prepayment of fees (“IFP
application”), pursuant to 28 U.S.C. § 1915(a).
the reasons discussed herein, rather than terminating the case
for payment of the fee, the Court will construe the petition as
a motion under 28 U.S.C. § 2255 and transfer it to the
(Pet., ECF No. 1.)
Petitioner pled guilty to drug
charges in the United States District Court for the Northern
District of New York, and he received a sentence of 240 months
(Id. at 1, ¶¶4-5.)
which provides, in pertinent part:
(a) Writs of habeas corpus may be granted by
the Supreme Court, any justice thereof, the
district courts and any circuit judge within
their respective jurisdictions. . . .
(c) The writ of habeas corpus
extend to a prisoner unless—
or laws or treaties of the United
Petitioner raises two grounds for relief:
 21 U.S.C. 851(A) lacks subject matter
jurisdiction for the district court to use
as an enhancement based on prior state
substance fifth degree) PL. 220.31 (Class 7
 The district court lack of subject
matter jurisdiction due to the Plaintiff’s
removal pursuant to 28 U.S.C. 1443 & 1447
causing the judgment to be void pursuant to
Rule 60(b)(3), & (4).
(Pet., ECF No. 1 at 6, ¶17(a),(b)).
“Motions pursuant to 28 U.S.C. § 2255 are the presumptive
means by which federal prisoners can challenge their convictions
Okereke v. U.S., 307 F.3d 117, 120 (3d Cir.
2002)(citing Davis v. United States, 417 U.S. 333, 343 (1974)).
“[T]he ‘safety valve’ clause of § 2255 allows a petitioner to
seek a writ of habeas corpus under § 2241 in the ‘rare case’ in
which a § 2255 motion would be ‘inadequate or ineffective to
test the legality of his detention.’” Jackman v. Shartle, 535 F.
App’x 87, 89 (3d Cir. 2013)(citing 28 U.S.C. § 2255(e); In re
Dorsainvil, 119 F.3d 245, 249–50 (3d Cir. 1997)).
The Third Circuit has applied the safety valve “where a
petitioner ‘is being detained for conduct that has subsequently
decision,’ and where the petitioner is otherwise barred from
filing a second or successive § 2255 petition.”
re Dorsainvil, 119 F.3d at 252)).
Id. (quoting In
The Dorsainvil exception does
not apply to a petitioner’s claim that he is innocent of a
sentencing enhancement due to an intervening change in the law.
Selby v. Scism, 453 F. App’x 266, 268 (3d Cir. 2011.)
Plaintiff’s first ground for relief is that he is innocent
of a sentencing enhancement.
Such a claim must be brought in
the sentencing court under 28 U.S.C. § 2255.
ground for relief relies on Federal Rule of Civil Procedure
“Rule 60(b) cannot be used as an independent means to
relieve a defendant of a judgment in a criminal case, because
Gray v. U.S., 385 F. App’x 160, 162 (3d Cir.
2010); see also United States v. Andrews, 463 F.App'x 169, 171–
72 (3d Cir. 2012)(a criminal defendant may bring a Rule 60(b)
motion in a § 2255 proceeding if he attacks some “‘defect in the
integrity of the federal habeas proceedings’”)(quoting Gonzalez
v. Crosby, 545 U.S. 524, 532 (2005)).
It does not appear that Petitioner has brought a motion
under 28 U.S.C. § 2255 in the sentencing court.
28 U.S.C. §
Whenever a civil action is filed in a court
. . . and that court finds that there is a
want of jurisdiction, the court shall, if it
is in the interest of justice, transfer such
action . . . to any other such court in
which the action . . . could have been
brought at the time it was filed . . .
limitations from consideration of his § 2255 motion,2 in the
28 U.S.C. § 2255(f) provides:
(f) A 1-year period of limitation shall
apply to a motion under this section. The
limitation period shall run from the latest
of-(1) the date on which the judgment of
conviction becomes final;
(2) the date on which the impediment to
making a motion created by governmental
action in violation of the Constitution or
laws of the United States is removed, if
interest of justice, this Court will transfer the case to the
sentencing court to make that determination.
under 28 U.S.C. § 2241.
The Court construes the petition as a
motion under 28 U.S.C. § 2255, and will direct the Clerk to
transfer this case to the United States District Court, Northern
District of New York, pursuant to 28 U.S.C. § 1631.
An appropriate Order follows.
s/Renée Marie Bumb__________
RENÉE MARIE BUMB
United States District Judge
Dated: July 6, 2017
the movant was prevented from making
motion by such governmental action;
(3) the date on which the right asserted
was initially recognized by the Supreme
Court, if that right has been newly
recognized by the Supreme Court and made
collateral review; or
(4) the date on which the facts supporting
the claim or claims presented could have
been discovered through the exercise of
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