MCCREA v. WARDEN

Filing 8

OPINION. Signed by Judge Noel L. Hillman on 4/5/2018. (tf, n.m.)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
______________________________
:
:
:
Petitioner,
:
:
v.
:
:
DAVID ORTIZ,
:
:
Respondent.
:
______________________________:
ASTON EARL McCREA,

Civ. No. 17-4501 (NLH)
OPINION

APPEARANCES:
Aston Earl McCrea, No. 33982-083
FCI – Fort Dix
P.O. Box 2000
Joint Base MDL, NJ 08640
Petitioner Pro se
Craig Carpenito, Esq.
Anne B. Taylor, Esq.
Office of the U.S. Attorney
401 Market Street
P.O. Box 2098
Camden, NJ 08101
Counsel for Respondent

HILLMAN, District Judge
Petitioner Aston Earl McCrea, a prisoner presently
incarcerated at the Federal Correctional Institution (“FCI”) at
Fort Dix in Fort Dix, New Jersey, filed this Petition for Writ
of Habeas Corpus under 28 U.S.C. § 2241, which challenges the
legality of his imprisonment.

ECF No. 1.

In lieu of an answer,

the Respondent filed a Motion to Dismiss the Petition for lack
of jurisdiction.

ECF No. 7.

The Petitioner has not filed an

opposition.

For the reasons expressed below, the Court will

grant the Motion and dismiss the Petition for lack of
jurisdiction.
I.

BACKGROUND
Petitioner was convicted by jury in the Western District of

Virginia of conspiracy to distribute marijuana, possession with
intent to distribute, conspiracy to commit money laundering,
possession of a firearm as a felon, and possession of a firearm
in furtherance of a drug trafficking crime.

See ECF No. 1, Pet.

at 1; No. 7:11-cr-89, ECF Nos. 80 (jury verdict), 108 (judgment
of conviction) (W.D. Va.).

Petitioner received a one hundred

and eighty (180) month sentence for these convictions.

ECF No.

1, Pet. at 1; No. 7:11-cr-89, ECF No. 108 (W.D. Va.).
Petitioner filed a direct appeal to the Fourth Circuit Court of
Appeals regarding his conviction, which was denied on July 12,
2013.

See No. 12-4755, ECF No. 52 (mandate) (4th Cir.).

Petitioner did not file a petition for writ of certiorari with
the Supreme Court of the United States as to that appeal. 1

See

generally No. 12-4755 (4th Cir.).

1

Petitioner filed another appeal to the Court of Appeals for the
Fourth Circuit related to the forfeiture order, which was
denied. See No. 14-4055 (4th Cir.). He did file a petition for
writ of certiorari with the Supreme Court of the United States
in the forfeiture order appeal, which petition was denied. See
id.
2

Petitioner filed a motion pursuant to 28 U.S.C. § 2255 in
his sentencing court on July 24, 2013.
No. 172 (W.D. Va.).

See No. 7:11-cr-89, ECF

In his § 2255 motion, Petitioner argued

that his counsel was ineffective because, inter alia, his
counsel failed to argue that Petitioner was not a career
offender.

Id. at 8.

While his § 2255 motion was pending, the

Supreme Court of the United States issued its opinion in
Rosemond v. United States, 134 S. Ct. 1240 (2014), on March 5,
2014.

Petitioner did not amend his § 2255 motion, file a

supplemental brief, or request leave of court to do so in
response to the Rosemond opinion.
(W.D. Va.).

See generally No. 7:11-cr-89

Petitioner’s sentencing court denied his § 2255

motion on June 13, 2014.

See No. 7:11-cr-89, ECF Nos. 203

(opinion), 204 (order) (W.D. Va.).
Prior to filing the instant petition, Petitioner filed in
the Court of Appeals for the Fourth Circuit a request to file a
second and successive § 2255 motion, seeking to bring the same
two claims that are raised in the instant Petition.
160, ECF No. 2 (4th Cir.).

See No. 17-

That request was denied by order

dated March 27, 2017, without an opinion or explanation for the
denial.

See No. 17-160, ECF No. 8 (4th Cir.).

Petitioner filed the instant Petition pursuant to 28 U.S.C.
§ 2241 on June 9, 2017, which was docketed on June 19, 2017.

In

it, he argues that pursuant to Rosemond v. United States, 134 S.
3

Ct. 1240 (2014), he is actually innocent of his firearm offenses
because he never had possession of the firearm at issue, and
that he was improperly considered a career offender by his
sentencing court.

See ECF No. 1, Pet. at 4-5.

The instant

Petition is substantially the same as the proposed successive §
2255 motion he sought to file by leave of the Fourth Circuit.
Compare ECF No. 1, with No. 17-160, ECF No. 2 (4th Cir.).
II.

DISCUSSION
A.

Legal Standard

United States Code Title 28, Section 2243, provides in
relevant part as follows:
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.
4

B. Analysis
As noted by the Court of Appeals for the Third Circuit in
In re Dorsainvil, 119 F.3d 245, 249 (3d 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 where “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), 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.”
Dorsainvil, 119 F.3d at 251.

5

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
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
6

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 Petition if, and only if, 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 for both of the issues raised in this Petition in his §
2255 Motion.

He did, in fact, raise his career offender status

in his § 2255 motion, and he had the opportunity to include the
Rosemond issue in that motion as well, but failed to do so.

As

to the Rosemond decision, Petitioner failed to amend his § 2255
motion to include reference to that recent decision and also
failed to seek reconsideration after the court’s decision in
light of that decision.

In addition, Petitioner had an

opportunity to and did raise both issues in his request to the
Fourth Circuit to file a second and successive § 2255 Motion,
which Petitioner admits in this Petition.

7

ECF No. 1, Pet. at 3

(noting issues raised in § 2255 are the “SAME AS INSTANT
MEMORANDUM OF LAW”).
“In Rosemond, the Supreme Court clarified the standard for
showing that a defendant aided and abetted a § 924(c) offense,
holding that the government must prove that ‘the defendant
actively participated in the underlying . . . violent crime with
advance knowledge that would a confederate would use or carry a
gun during the crime’s commission.’”

Tawalebah v. Warden Fort

Dix FCI, 614 F. App’x 46, 48 (3d Cir. 2015) (quoting Rosemond,
134 S. Ct. at 1243).

No court, however, has held that such a

claim may be brought pursuant to a § 2241 petition.

See id.

(noting that the Court of Appeals for the Third Circuit has not
yet addressed whether a Rosemond claim may be brought via a §
2241 petition pursuant to a Dorsainvil exception); Moore v.
United States, No. 17-cv-125, 2018 WL 527917, at *4 (M.D. Pa.
Jan. 24, 2018) (“Based upon Petitioner’s failure to present this
Court with any authority to support a determination that any
federal Court has held that a Rosemond based claim may be
pursued via a § 2241 proceeding, it is apparent that habeas
corpus review is not appropriate here.”); Spataro v.
Hollingsworth, No. 15-cv-1736, 2016 WL 3951327, at *5 (D.N.J.
July 21, 2016)(“[B]ecause Rosemond does not represent a
retroactive change in the law which negates the criminality of
his conduct, Petitioner’s claim does not fit within the
8

Dorsainvil exception, and it must be dismissed.”), aff’d 684 F.
App’x 117 (3d Cir. 2017).
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
Fourth Circuit to file a second and successive motion.
Petitioner has already sought such permission, which was denied.
Any successive § 2255 motion would also appear to be time-barred
given the date of Petitioner’s conviction and the date on which
the Rosemond opinion was issued.

The Court thus finds that it

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

See also Pagan v. Warden Lewisburg USP, 659 F. App’x

715, 717 (3d Cir. 2016) (noting that the Court of Appeals for
the Second Circuit had denied the petitioner’s request to file a
second and successive § 2255 motion because Rosemond “focused
entirely on statutory interpretation and did not set out a new
rule of constitutional law.

Moreover, even if Rosemond were

construed as setting out a new rule of constitutional law, there
is no indication that the Supreme Court intended any such rule
9

to apply retroactively to cases on collateral review.”).
Petitioner is free to file another request for a second motion
to vacate, set aside, or correct sentence pursuant to § 2255 in
the Fourth Circuit or to file a motion for sentence reduction
under 18 U.S.C. § 3582(c)(2) in his sentencing court on his own.
III. CONCLUSION
For the foregoing reasons, the Petition will be dismissed
for lack of jurisdiction.

An appropriate order follows.

Dated: April 5, 2018
At Camden, New Jersey

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

10