CHOWDHURY v. WOOD et al

Filing 14

OPINION. Signed by Judge Noel L. Hillman on 6/22/2018. (tf, n.m.)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
______________________________
:
EZAZ KABIR CHOWDHURY,
:
:
Petitioner,
:
Civ. No. 17-3491 (NLH)
:
v.
:
OPINION
:
KIMBA M. WOOD, STATE OF NEW
:
YORK, ATTORNEY GENERAL OF
:
NEW JERSEY,
:
:
Respondents.
:
______________________________:
APPEARANCES:
Ezaz Kabir Chowdhury, No. 31258-054
USP Canaan
3057 Easton Turnpike
Waymart, PA 18472
Petitioner Pro se
Caroline A. Sadlowski
U.S. Attorney’s Office
970 Broad Street, Suite 700
Newark, NJ 07102
Counsel for Respondents
HILLMAN, District Judge
Petitioner Ezaz Kabir Chowdhury, a prisoner presently
confined at the United States Penitentiary at Canaan, in
Waymart, Pennsylvania, brings this action pursuant to 28 U.S.C.
§ 2241 to challenge the legality of his conviction.
2, Am. Pet.

ECF No. 4-

Respondent has moved to dismiss the Amended

Petition for lack of jurisdiction.

ECF No. 10.

For the reasons

that follow, the Court will grant the Motion and dismiss the
Petition without prejudice.

BACKGROUND
Petitioner filed the present Amended Petition for a Writ of
Habeas Corpus seeking relief under 28 U.S.C. § 2241.

He appears

to challenge the legality of his underlying criminal conviction
from the U.S. District Court for the Southern District of New
York.

See ECF No. 4-2, Am. Pet.

On February 7, 2011, Petitioner was charged by a now
unsealed indictment of various crimes related to credit card and
bank fraud in the Southern District of New York.
108, ECF No. 1 (S.D.N.Y.).

See No. 11-cr-

A notation on the docket of his

criminal case indicates that Petitioner was arrested on February
10, 2011, and also had his initial appearance on that date with
a detention hearing scheduled for February 15, 2011.

See No.

11-cr-108, Docket Notation dated Feb. 10, 2011 (S.D.N.Y.).

On

June 10, 2011, Petitioner pled guilty to two counts of the
indictment and detention continued to be detained.

On January

15, 2013, Petitioner was sentenced to 108 months’ imprisonment.
See No. 11-cr-108, ECF No. 222 (judgment of conviction)
(S.D.N.Y.).

According to the Federal Bureau of Prison’s inmate

locator, available at https://www.bop.gov/inmateloc/, the
Petitioner is set to be released on January 18, 2019.
Petitioner filed a direct appeal of his conviction with the
U.S. Court of Appeals for the Second Circuit, which affirmed his
judgment of conviction on December 2, 2014.
2

See No. 11-cr-108,

ECF No. 266, Mandate (S.D.N.Y.).

It does not appear that

Petitioner filed a petition for writ of certiorari with the
Supreme Court of the United States.
(2d Cir.).

See generally No. 13-555

Thereafter, on July 6, 2015, Petitioner filed a

motion to vacate, set aside, or correct sentence pursuant to 28
U.S.C. § 2255 in the Southern District of New York, alleging
ineffective assistance of counsel and challenging whether his
guilty plea was voluntary and knowingly entered into in light of
the alleged ineffective assistance of counsel.
5494, ECF No. 1 (S.D.N.Y.).

See No. 15-cv-

That motion was ultimately denied

by order dated February 24, 2017, in which the court determined
that his counsel was not ineffective and his guilty plea was
knowing and voluntary; thus, the appellate and collateral attack
waivers were enforceable.
(S.D.N.Y.).

See No. 15-cv-5495, ECF No. 13

Petitioner sought a certificate of appealability

from the Second Circuit, which certificate was denied.

See No.

17-1370, ECF No. 58, Mandate (2d Cir.).
In his Amended Petition, Petitioner alleges that on
February 10, 2011, agents from Immigration and Customs
Enforcement (“ICE”) “kidnapped” him from John F. Kennedy
International Airport in Queens, New York.
4-5.

See ECF No. 4-2 at

Petitioner alleges that he was then taken before U.S.

District Judge Kimba M. Wood in the Southern District of New
York, who issued “an oral Order commanding petitioner be held
3

permanent by the Kidnappers.”

Id. at 7.

Petitioner contends

that since February 10, 2011, he has been held “under the
absolute command and personal pleasure of stranger Kimba M. Wood
in forced subjugation to involuntary servitude labor and
performance.”

Id.

In addition, the Petitioner also alleges

that on the day he was kidnapped, certain of his possessions
were taken from him such as his driver’s license, credit cards,
and his passport, none of which have been returned.

Id. at 5.

Finally, Petitioner states that he has learned from recent
investigative news reports that there have been several state
police kidnappings and criminal prosecutions of American
citizens by private individuals pretending to be members of the
United States Attorney’s Office or federal officers.

Id. at 8.

As for his requested relief, the Petitioner seeks proof of the
legality of his imprisonment and, if such proof does not exist,
to be released.

See ECF No. 4-2 at 9.

The Respondent filed a Motion to Dismiss the Petition on
arguing that the Court lacks jurisdiction over the petition,
because a challenge to the legality of his conviction may only
be brought pursuant to a § 2255 motion.

See ECF No. 10.

Petitioner did not file an opposition.
STANDARD OF REVIEW
United States Code Title 28, Section 2243, provides in
relevant part as follows:
4

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.
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.
DISCUSSION
Given the allegations raised in the Petition, the Court
construes the Petition as challenging the legality of
Petitioner’s conviction. 1

As noted by the Court of Appeals for

the Third Circuit in In re Dorsainvil, 119 F.3d 245, 249 (3d

1

To the extent that Petitioner’s references to seized property,
the deprivation of his liberty, and involuntary servitude prior
to his conviction are intended to raise claims for violations of
Petitioner’s Fourth, Fifth, and Eighth Amendment rights,
Petitioner must raise such claims by filing a civil rights
action pursuant to Bivens v. Six Unknown Named Agents, 403 U.S.
388 (1971), in the district in which those alleged violations
occurred. The Court expresses no opinion as to whether such
claims are viable.
5

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 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 when “it
appears that the remedy by motion is inadequate or ineffective
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), when 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 Third Circuit 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
6

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 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 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).

Further, 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).
Under Dorsainvil and its progeny, this Court can exercise §
2241 jurisdiction over this Amended Petition if, and only if,
7

Petitioner demonstrates (1) his “actual innocence,” (2) as a
result of a retroactive change in substantive law that negates
the criminality of his conduct, (3) for which he had no other
opportunity to seek judicial review.

See Dorsainvil, 119 F.3d

at 251-52; Cradle, 290 F.3d at 539; Okereke, 307 F.3d at 120;
Trenkler v. Pugh, 83 F. App’x 468, 470 (3d Cir. 2003).
Here, Petitioner’s claims do not fall within the Dorsainvil
exception because Petitioner had an opportunity to seek judicial
review of the legality of his conviction in his § 2255 Motion.
Further, Petitioner does not allege or argue that his Amended
Petition should come within the Dorsainvil exception.
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.

Since he has previously filed a

§ 2255 motion, Petitioner would need to seek permission from the
Second Circuit to file a second and successive motion.

Any

successive § 2255 motion would appear to be time-barred given
the date of Petitioner’s conviction.

The Court thus finds that

it is not in the interests of justice to transfer this habeas
Petition.

Petitioner is free to file a request for a second
8

motion to vacate, set aside, or correct sentence pursuant to §
2255 in the Second Circuit.
CONCLUSION
For the reasons set forth above, the Motion to Dismiss will
be granted and the Petition will be dismissed without prejudice
for lack of jurisdiction. 2

An appropriate Order follows.

Dated: June 22, 2018
At Camden, New Jersey

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

2

As the Third Circuit noted in Henry, a dismissal without
prejudice of a § 2241 petition will not prevent the Petitioner
from appropriately challenging his detention if the
circumstances warrant it in the future. Henry, 317 F. App’x at
179-80.
9