MURRAY v. KIRBY
OPINION FILED. Signed by Judge Robert B. Kugler on 6/2/17. (js)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
GAESON LEE MURRAY,
Civ. No. 17-3585 (RBK)
ROBERT B. KUGLER, U.S.D.J.
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 his federal sentence
was improperly enhanced. Petitioner relies on the recent United States Supreme Court case in
Mathis v. United States, 136 S. Ct. 2243 (2016) to support his habeas petition. For the following
reasons, the habeas petition will be summarily dismissed.
In 2005, petitioner was found guilty of conspiracy to distribute and possess with intent to
distribute fifty grams or more of cocaine base along with possession with intent to distribute
cocaine base in the United States District Court for the Western District of Virginia. He was
sentenced to 240 months imprisonment. The United States Court of Appeals for the Fourth
Circuit affirmed the judgment and conviction in 2007.
In 2008, petitioner filed a motion to vacate, set aside or correct his sentence pursuant to
28 U.S.C. § 2255 in the Western District of Virginia. Ultimately, petitioner’s § 2255 motion was
denied in full. On appeal, the Fourth Circuit denied a certificate of appealability in 2009.
Thereafter, petitioner filed a few requests to file a second or successive § 2255 motion in 2013.
These were denied by the Fourth Circuit.
In May, 2017, petitioner filed this habeas petition. Citing to Mathis, 136 S. Ct. 2243,
United States v. Hinkle, 832 F.3d 569 (5th Cir. 2016) and Holt v. United States, 843 F.3d 720
(7th Cir. 2016), petitioner argues that he was improperly given an enhanced sentence under the
STANDARD FOR SUA SPONTE SCREENING OF HABEAS PETITION
With respect to screening the instant habeas petition, 28 U.S.C. § 2243 provides in
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
to it that the petitioner is not entitled to relief in the district court[.]” Lonchar v. Thomas, 517
U.S. 314, 320 (1996).
Petitioner seeks to have this Court review the criminal judgment and sentence entered by
the Western District of Virginia 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
[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
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.
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 around 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 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); Arnold v. Hollingsworth, No. 160993, 2016 WL 3647323, at *2 (D.N.J. July 7, 2016) (“[C]hallenges to career offender status
may not be made under § 2241.”) Therefore, § 2241 is not the proper avenue for petitioner to
pursue his claims.
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 Fourth Circuit for its consideration as a request to file a second or
successive § 2255 motion.1
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 Fourth Circuit for that Court’s
For the foregoing reasons, the habeas petition will be summarily dismissed due to a lack
of jurisdiction. An appropriate order will be entered.
DATED: June 2, 2017
s/Robert B. Kugler
ROBERT B. KUGLER
United States District Judge
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