WHITE v. KIRBY

Filing 7

OPINION FILED. Signed by Judge Noel L. Hillman on 8/8/17. (js)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
______________________________
:
:
:
Petitioner,
:
:
v.
:
:
WARDEN MARK KIRBY,
:
:
Respondent.
:
______________________________:
ROBERT WHITE,

Civ. No. 17-4586 (NLH)
OPINION

APPEARANCES:
Robert White
Fairton
20225-424
Federal Correctional Institution
P.O. Box 420
Fairton, NJ 08320
Petitioner Pro se
HILLMAN, District Judge
Petitioner Robert White, 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, challenging a
sentencing enhancement.

(ECF Nos. 1, 2.)

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.

See also 28 U.S.C. § 2243.

For the reasons set forth

below, the Petition will be dismissed.1
I.

BACKGROUND
On February 8, 2001, Petitioner was indicted on three

counts: distributing crack cocaine, 21 U.S.C. § 841(a)(1); using
and carrying a firearm during a drug trafficking crime, 18
U.S.C. § 924(c); and possessing a firearm after being convicted
of a felony, 18 U.S.C. § 922(g)(1).
No. 00-1017 (N.D. Ill. 2001).

U.S. v. White, Crim. Action

Petitioner eventually pled guilty

and the United States District Court for the Northern District
of Illinois sentenced him to 292 months imprisonment on the drug
charge and 120 months imprisonment on the § 922(g) count, to be
served concurrently.
appeal.

Id.

Petitioner did not file a direct

Instead, he filed a motion to vacate his conviction

pursuant to 28 U.S.C. § 2255 based on ineffective assistance of
counsel, which was denied by the district court.
Civil Action No. 04-7616 (N.D. Ill. 2006).

White v. U.S.,

The United States

Court of Appeals for the Seventh Circuit denied his appeal.
White v. United States, 273 F. App'x 559, 560 (7th Cir. 2008).
Petitioner thereafter filed a request for authorization to
file a successive petition with the Seventh Circuit in light of

The Court initially administratively terminated this case for
failure to submit the filing fee. (ECF Nos. 4, 5.) Petitioner
thereafter submitted the filing fee.
1

2

the Supreme Court’s holding in Johnson v. United States, 135
S.Ct. 2551 (2015).
Cir. 2016).

White v. U.S., Civil Action No. 16-2031 (7th

The Seventh Circuit denied his request.

(Id.)

In

November 2016, Petitioner filed a second request for
authorization to file a successive petition with the Seventh
Circuit based on Johnson, which the Court of Appeals again
denied.

White v. U.S., Civil Action No. 16-3858 (7th Cir. 2016).

Thereafter, Petitioner filed the instant habeas petition
seeking relief pursuant to 28 U.S.C. § 2241.

(ECF Nos. 1, 2.)

Petitioner argues that as a result of the Supreme Court’s
decision in Mathis v. United States, 136 S.Ct. 2243 (2016), he
no longer qualifies as a career offender under the Guidelines.
Specifically, he argues that under Mathis, his 1991 Illinois
conviction for possession with intent to deliver should not have
been used as a predicate offense to enhance him as a career
offender.
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.
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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. Schult,

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).

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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.

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
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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).

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”)
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(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); 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); Newman v. Kirby, No.
17-4653, 2017 WL 3080729 (D.N.J. July 19, 2017) (same); Coleman
v. Kirby, 2017 WL 3332262 (D.N.J. Aug. 4, 2017) (same).
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 Seventh Circuit for its
consideration as a request to file a second or successive § 2255
motion because that court has already previously denied such
requests by other prisoners.

See, e.g., Davis v. U.S., Civil

Action No. 16-3204 (7th Cir. 2016) (“Mathis does not meet the
criteria for authorization [for a successive 2255 petition]”);
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Dawkins v. U.S., No. 16‐2683, 2016 WL 3854238, at *551 (7th Cir.
July 15, 2016) (same).2
III. CONCLUSION
For the foregoing reasons, the Petition will be summarily
dismissed due to a lack of jurisdiction.

An appropriate order

follows.

Dated: August 8, 2017
At Camden, New Jersey

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

The Court’s decision not to transfer the instant Petition does
not preclude Petitioner from filing a request with the Seventh
Circuit on his own.
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