LEWIS v. SESSIONS et al

Filing 8

OPINION. Signed by Judge Robert B. Kugler on 8/15/2017. (rtm, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
_________________________________________
KENNETH WAYNE LEWIS,
:
:
Petitioner,
:
Civ. No. 17-3668 (RBK)
:
v.
:
:
JEFF SESSIONS, et al.,
:
OPINION
:
Respondents.
:
_________________________________________ :
ROBERT B. KUGLER, U.S.D.J.
I.

INTRODUCTION

Petitioner is a federal prisoner currently incarcerated at F.C.I. Fort Dix in Fort Dix, New
Jersey. He is proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. §
2241. For the reasons that follow, the in forma pauperis application is granted and the habeas
petition will be summarily dismissed.
II.

BACKGROUND

Petitioner went to trial on a fifteen count indictment in the United States District Court
for the Central District of Illinois. (See C.D. Ill. Crim. No. 12-10082) Counts 1-4 were for wire
fraud and Counts 5-15 were for money laundering. Petitioner was found guilty by a jury on all
counts. He was sentenced to 151 months on the four wire fraud convictions and 120 months on
the eleven money laundering convictions to be served consecutively to each other for a total of
271 months imprisonment. On appeal, the United States Circuit Court for the Seventh Circuit
vacated petitioner’s convictions for money laundering and remanded the matter back to the
Central District of Illinois for resentencing on the four wire fraud count convictions. On August

22, 2016, the Central District of Illinois entered an amended judgment. Petitioner was
resentenced on the four wire fraud count convictions to 135 months imprisonment.
In May 2017, this Court received petitioner’s petition for writ of habeas corpus pursuant
to 28 U.S.C. § 2241. Petitioner challenges his sentence, alleging the presentence report (PSR)
was not revised after the Seventh Circuit remanded to the district court for resentencing,
rendering his subsequent sentence and imprisonment illegal.
III.

STANDARD FOR SUA SPONTE DISMISSAL

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
to it that the petitioner is not entitled to relief in the district court[.]” Lonchar v. Thomas, 517
U.S. 314, 320 (1996).

2

IV.

DISCUSSION

Petitioner is seeking to have this Court review the sentence entered by the Central District
of Illinois after the Seventh Circuit remanded back to that court. He argues the sentence is
invalid and his confinement is illegal because the U.S. Probation Office did not revise the PSR
before resentencing him. 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
use it, that is determinative.” Id. at 538 (citation omitted). “The provision exists to ensure that

3

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, he argues the PSR is inaccurate and
therefore his sentence is invalid. “Regardless of how Petitioner labels his pending PSR related
claim, it clearly questions the legality of his federal sentence.” Bowens v. United States, No. 101575, 2011 WL 5520531, at *3 (M.D. Pa. Nov. 14, 2011), aff'd, 508 F. App'x 96 (3d Cir. 2013).
Thus, this Court lacks jurisdiction to consider the instant habeas petition.1
1

To the extent Petitioner seeks damages for alleged violations of his civil rights, he must file a
separate civil rights complaint pursuant to Bivens v. Six Unknown Named Agents of Federal
Bureau of Narcotics, 403 U.S. 388 (1971). “Petitioner is on notice, however, that the filing fee
for a civil action is $400 and that the prerequisites for in forma pauperis status in an action under
Bivens are different than those in a habeas case.” Eiland v. Hollingsworth, No. 15-2995, 2015
WL 3604141, at *2 (D.N.J. June 8, 2015), aff'd as modified, 634 F. App'x 87, 89 (3d Cir. 2015).
4

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. It does not appear that petitioner
has ever filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255
in the Central District of Illinois. Nevertheless, this Court finds that it is not in the interest of
justice to transfer this petition to the Central District of Illinois at this time.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: August 15, 2017

s/Robert B. Kugler
ROBERT B. KUGLER
United States District Judge

2

Nothing in this Opinion should be construed by petitioner as preventing him from filing a §
2255 motion in the Central District of Illinois for that court’s consideration in the first instance
should he elect to do so provided it is filed within the applicable statute of limitations.
5