FERGUSON v. KIRBY
OPINION. Signed by Judge Robert B. Kugler on 8/7/2017. (dmr)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
LARRY L. FERGUSON,
Civ. No. 17-4579 (RBK)
WARDEN MARK KIRBY,
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. Previously, this matter was administratively terminated as
petitioner had not paid the filing fee, nor had he submitted an application to proceed in forma
pauperis. Thereafter, petitioner paid the filing fee and filed a motion to reopen this case.
Petitioner’s motion to reopen this case will be granted in light of the filing fee that has now been
paid. Petitioner argues in his habeas petition that two of his prior convictions do not qualify him
as a career offender under the United States Sentencing Guidelines. For the following reasons,
the habeas petition will be summarily dismissed.
In 2006, petitioner was found guilty by a jury of one count of conspiracy to distribute and
possess with intent to distribute 100 grams or more of heroin and five counts of possession with
intent to distribute heroin in the United States District Court for the Western District of
Pennsylvania. He was sentenced to 360-months imprisonment. In 2010, the United States Court
of Appeals for the Third Circuit affirmed the judgment of conviction.
In 2011, petitioner filed a motion to vacate, set aside or correct his sentence pursuant to
28 U.S.C. § 2255 in the Western District of Pennsylvania. In November, 2012, the Western
District of Pennsylvania denied petitioner’s § 2255 motion. Petitioner’s motion for
reconsideration was denied in June, 2013. The Third Circuit denied a certificate of appealability
in October, 2013.
Petitioner filed this habeas petition in this Court in June, 2017. Citing to Mathis v. United
States, 136 S. Ct. 2243 (2016) and United States v. Hinkle, 832 F.3d 569 (5th Cir. 2016),
petitioner argues that he was improperly given a career offender enhancement under the
Sentencing Guidelines as two of his prior convictions no longer support a career offender
qualification. He requests that he be resentenced.
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 Pennsylvania 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 on 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.”); see also Smith v. Warden, FCI Schuylkill, No. 17-1130, 2017
WL 3233052, at *2 (M.D. Pa. July 31, 2017) (“The Third Circuit Court of Appeals has not
extended the limited Dorsainvil exception to include situations where a prisoner is challenging a
sentencing enhancement based on an intervening change in substantive law.”); Canini v. United
States of America, No. 17-1220, 2017 WL 2899687, at *3 (D.N.J. July 7, 2017) (same).
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
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 7, 2017
s/Robert B. Kugler
ROBERT B. KUGLER
United States District Judge
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 Third Circuit for that Court’s
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