DAVENDER v. KIRBY

Filing 5

OPINION FILED. Signed by Judge Noel L. Hillman on 1/5/18. (js)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
______________________________
:
TODD DAVENDER,
:
:
Petitioner,
:
Civ. No. 17-4583 (NLH)
:
v.
:
OPINION
:
WARDEN MARK KIRBY,
:
:
Respondent.
:
______________________________:
APPEARANCES:
Todd Davender
13960-014
Fairton
Federal Correctional Institution
P.O. Box 420
Fairton, NJ 08320
Petitioner Pro se
HILLMAN, District Judge
Petitioner Todd Davender, a prisoner confined at the
Federal Correctional Institution (“FCI”) in Fairton, New Jersey,
filed this writ of habeas corpus under 28 U.S.C. § 2241.
No. 1.)

(ECF

At this time, the Court will review the Petition

pursuant to Rule 4 of the Rules Governing Section 2254 Cases,
(amended Dec. 1, 2004), made applicable to § 2241 petitions
through Rule 1(b) of the Habeas Rules.
2243.

See also 28 U.S.C. §

For the reasons set forth below, the Petition will be

dismissed.

I.

BACKGROUND
The United States District Court for the District of

Connecticut provided the following summary of Petitioner’s
underlying criminal matter:
After his arrest on August 27, 2000, the
petitioner was arraigned in this court on
September 20, 2000 on various narcotics
charges stemming from incidents that occurred
from June 1999 to August 2000. On November 6,
2001, a jury found the petitioner guilty of
one count of conspiracy to possess with intent
to distribute fifty grams or more of cocaine
base in violation of 21 U.S.C. §§ 841(a)(1),
(b)(1)(A) and 846, one count of conspiracy to
possess with intent to distribute five
kilograms or more of cocaine in violation of
21 U.S.C. §§ 841(a)(1), (b)(1)(A) and 846, and
two counts of conspiracy to possess with
intent to distribute five hundred grams or
more of cocaine in violation of 21 U.S.C. §§
841(a)(1) and (b)(1)(B). On January 25, 2002,
United States District Judge Janet C. Hall
sentenced the petitioner to a total effective
sentence of 360 months of imprisonment.
The petitioner appealed his conviction. On
November 12, 2003, the Court of Appeals for
the Second Circuit affirmed the judgment of
conviction.
On October 1, 2004, the petitioner filed a
motion to vacate or set aside sentence
claiming ineffective assistance of trial and
appellate counsel, prosecutorial misconduct
and trial court error as to the calculation of
his sentence. On May 2, 2008, the court denied
the motion. On November 30, 2009, the United
States Court of Appeals for the Second Circuit
dismissed the petitioner's appeal from the
denial of the section 2255 motion.
On November 29, 2011, the petitioner filed a
motion for modification of his sentence
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pursuant to 18 U.S.C. § 3582(c)(2). He argued
that the court should reduce his sentence
because Amendment 750 to the United States
Sentencing Guidelines, effective on November
1, 2011, reduced the base offense levels
applicable to crack cocaine offenses and
applied retroactively. On December 21, 2011,
the court granted his motion and reduced his
total effective sentence to 324 months of
imprisonment.
Davender v. U.S., No. 11-568, 2012 WL 6649588, at *1 (D. Conn.
Dec. 19, 2012) (internal docket citations omitted).

Petitioner

filed a second motion to modify his sentence, based on Amendment
782, which was granted and his sentenced reduced to 262 months.
U.S. v. Davender, 00-44 (D. Conn. 2015).
On June 23, 2016, Petitioner filed a request for permission
to file a second or successive § 2255 petition pursuant to
Johnson v. United States, 135 S.Ct. 2551 (2015) with the Second
Circuit.
2016).

Davender v. U.S., Civil Action No. 16-2109 (2d Cir.
The court denied his request.

(Id.)

Petitioner

thereafter filed another request to file a second or successive
petition, raising various claims including a claim based on
Mathis v. United States, 136 S.Ct. 2243 (2016).
U.S., Civil Action No. 17-599.
permission.

Davender v.

The court again denied

Id.

While his request was pending before the Second Circuit,
Petitioner filed the instant habeas Petition.

(ECF No. 1.)

argues that: (1) his counsel was ineffective for failing to

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He

argue that his § 851 enhancement no longer applied because of
Alleyne v. United States, 133 S.Ct. 2151 (2013); (2) a prior
conviction used to enhance his sentence no longer qualifies in
light of Mathis and United States v. Hinkle, 832 F.3d 569 (5th
Cir. 2016); and (3) the trial court judge abused her discretion
by failing to conduct a “multi factor analysis” when Petitioner
objected to the usage of a prior conviction in sentencing.
(Pet. 2-14.)
II.
A.

DISCUSSION
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.
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See Denny v. Schultz,

708 F.3d 140, 148 n. 3 (3d Cir. 2013); see also 28 U.S.C. §§
2243, 2255.
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 also 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

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an intervening change in substantive law may negate.”
Dorsainvil, 119 F.3d at 251.
The court 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 Court of Appeals for 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
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preponderance of evidence standard).

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).
Here, Petitioner’s claims do not fall into the Dorsainvil
exception.

Specifically, 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 relate to 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); Wyatt v. Warden FCI Fort Dix, No. 171335, 2017 WL 1367239 (D.N.J. Apr. 10, 2017) (finding court
lacks jurisdiction under § 2241 when petitioner is challenging
his sentencing enhancement under Mathis); Gardner v. Warden
Lewisburg USP, 845 F.3d 99, 102-03 (3d Cir. 2017) (holding that
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prisoners sentenced prior to Alleyne may not challenge their
sentences under § 2241 because Alleyne did not render the crimes
for which they were convicted non-criminal); Lewis v. Warden
Allenwood FCI, No. 17-2555, 2017 WL 6422350, at *2 (3d Cir. Dec.
18, 2017) (claims regarding sentencing and ineffective
assistance of counsel are the “prototypical claims that should
be raised in a § 2255 motion”).
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.

In this case, the Court will not

transfer the Petition to the Second Circuit for its
consideration as a request to file a second or successive § 2255
motion because, as discussed above, the court has already denied
that request from Petitioner.

Davender v. U.S., Civil Action

No. 17-599 (2d Cir. 2017).

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III. CONCLUSION
For the foregoing reasons, the Petition will be summarily
dismissed due to a lack of jurisdiction.

An appropriate order

follows.

Dated: January 5, 2018
At Camden, New Jersey

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

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