JACKSON v. KIRBY

Filing 2

OPINION FILED. Signed by Judge Renee Marie Bumb on 9/6/17. (js)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
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THOMAS JACKSON,
Petitioner,
v.

MARK KIRBY,
Respondent.
________________________

Civ. No. 17-4651 (RMB)

OPINION

BUMB, United States District Judge
On June 26, 2017, Petitioner, a prisoner confined in FCI
Fairton, in Fairton, New Jersey, filed a Petition for Writ of
Habeas Corpus pursuant to 28 U.S.C. § 2241. (Pet., ECF No. 1.)
Petitioner asserts that jurisdiction is proper under 28 U.S.C. §
2241

because

an

intervening

change

in

law

renders

his

designation as a career offender invalid, and 28 U.S.C. § 2255
is

inadequate

detention.
United
deemed

or

ineffective

(Id. at 4, 10.)

States,

136

retroactive

S.Ct.
on

2243

to

test

the

legality

of

his

Petitioner relies on Mathis v.
(2016),

collateral

which

review.1

he

asserts

(Id.

at

was
5.)

1

Neither the Supreme Court, nor the Third nor Eleventh Circuit
Courts of Appeals has decided whether Mathis is retroactively
applicable on collateral review.
Indeed, if the Supreme Court

Petitioner asserts jurisdiction here under § 2241, and raises
the issue of whether § 2255 is inadequate or ineffective to test
the legality of Petitioner’s detention pursuant to 28 U.S.C §
2255(e).
Pursuant to Rule 4 of the Rules Governing Section 2254
Cases in the United States District Courts, applicable to § 2241
under Rule 1, the scope of the rules, a district judge must
promptly examine a petition, and “[i]f it plainly appears from
the petition and any attached exhibits that the petitioner is
not entitled to relief in the district court, the judge must
dismiss

the

petition

petitioner.”

and

direct

the

Clerk

to

notify

the

For the reasons discussed below, the Court lacks

jurisdiction under § 2241.
I.

BACKGROUND
On October 20, 2000, a jury in the Southern District of

Florida found Petitioner guilty of conspiracy to possess with
intent

to

distribute

5

kilograms

or

more

of

cocaine,

and

attempting to possess 5 kilograms or more of cocaine with intent
to distribute.

(Pet., ECF No. 1 at 6); U.S. v. Jackson, 1:00-

or the Eleventh Circuit find that Mathis is retroactively
applicable on collateral review, Petitioner’s proper course is
to petition the Eleventh Circuit Court of Appeals to file a
second or successive § 2255 motion pursuant to 28 U.S.C. §
2255(h).
2 

cr-00345-DLG-2 (S.D. Fla.) (ECF No. 112.)2
Judgment

and

Conviction

was

entered

On July 16, 2002, a

against

Petitioner,

for

violation of 21 U.S.C. §§ 846, 841(a)(1), and he was sentenced
to

a

life

term

concurrently.

of

imprisonment

(Id., ECF No. 191).

on

each

count,

to

run

According to Petitioner, his

sentence was enhanced under 21 U.S.C. § 8513 and §4B1.1 of the

2

The court takes judicial notice of the docket and the judicial
opinions docketed in Petitioner’s criminal proceeding, U.S. v.
Jackson,
1:00-cr-00345-DLG-2
(S.D.
FL.),
available
at
www.pacer.gov.
See Orabi v. Attorney General of the U.S., 738
F.3d 535, 537 n.1 (3d Cir. 2014) (one court may take judicial
notice of the contents of another court’s docket); Southern
Cross Overseas Agencies, Inc. v. Wah Kwong Shipping Group Ltd.,
181 F.3d 410, 426 (3d Cir. 1999) (court may take judicial notice
of another court’s opinion, not for the truth of the facts
asserted therein, but for the existence of the opinion).
3

21 U.S.C. § 851(a) provides:
(a) Information filed by United States
Attorney
(1) No person who stands convicted of an
offense under this part shall be sentenced
to increased punishment by reason of one
or more prior convictions, unless before
trial, or before entry of a plea of
guilty, the United States attorney files
an information with the court (and serves
a copy of such information on the person
or counsel for the person) stating in
writing the previous convictions to be
relied upon. Upon a showing by the United
States attorney that facts regarding prior
convictions could not with due diligence
be obtained prior to trial or before entry
of a plea of guilty, the court may
postpone the trial or the taking of the
plea of guilty for a reasonable period for
the purpose of obtaining such facts.
3 

Sentencing Guidelines.4

(Pet., ECF No. 1 at 6.)

Petitioner appealed.
(S.D. Fla.) (ECF No. 192.)

U.S. v. Jackson, 1:00-cr-00345-DLG-2
On August 22, 2002, the Eleventh

Circuit Court of Appeals affirmed Petitioner’s conviction and
sentence.

(Id.; ECF No. 205.)

On October 8, 2004, Petitioner

filed a motion to vacate, set aside or correct sentence under 28
U.S.C. § 2255.

(Id., ECF No. 222.)5

On May 16, 2006, the

district court denied Petitioner’s § 2255 motion.

Jackson v.

Clerical mistakes in the information may
be amended at any time prior to the
pronouncement of sentence.
(2) An information may not be filed under
this section if the increased punishment
which may be imposed is imprisonment for a
term in excess of three years unless the
person either waived or was afforded
prosecution by indictment for the offense
for which such increased punishment may be
imposed.
4

U.S.S.G. 4B1.1(a) Career Offender provides:
(a) A defendant is a career offender if (1)
the defendant was at least eighteen years
old at the time the defendant committed the
instant offense of conviction; (2) the
instant offense of conviction is a felony
that is either a crime of violence or a
controlled substance offense; and (3) the
defendant has at least two prior felony
convictions of either a crime of violence or
a controlled substance offense.

5

This Court takes judicial notice of the docket and the
judicial opinions docketed in Petitioner’s § 2255 action,
Jackson v. United States, 04-22561-CV-AJ) (S.D. Fla.) available
at www.pacer.gov.
4 

United

States,

04-22561-CV-AJ)

Petitioner appealed.

(S.D.

Fla.)

(Id., ECF No. 55.)

(ECF

No.

54.)

The Eleventh Circuit

Court of Appeals affirmed the district court’s denial of the §
2255 motion on July 24, 2008.
On

August

21,

2012,

(Id., ECF No. 70.)

Petitioner

filed

another

motion

to

vacate, set aside or correct sentence under 28 U.S.C. § 2255.
U.S. v. Jackson, 1:00-cr-00345-DLG-2 (S.D. Fla.) (ECF No. 261.)
The

district

court

dismissed

the

motion

because

Petitioner

failed to obtain permission from the Eleventh Circuit Court of
Appeals before filing a second or successive § 2255 motion.
(ECF No. 280.)
Petitioner raises two issues in his § 2241 petition: (1)
whether Petitioner’s enhancement under 21 U.S.C. § 851 no longer
applies in light of Alleyne v. United States,6 and (2) “whether
the Supreme Court’s decision in Descamps7 allows Petitioner to

6

In Alleyne, 133 S.Ct. 2151, 2155 (2013), the U.S. Supreme Court
held that, “[a]ny fact that, by law, increases the penalty for a
crime is an ‘element’ that must be submitted to the jury and
found beyond a reasonable doubt,” and further that, “any fact
that increases the mandatory minimum is an ‘element’ that must
be submitted to the jury.”
7

In Descamps, the defendant was convicted of being a felon in
possession of a firearm, in violation of 18 U.S.C. § 922(g), and
the Government sought an enhanced sentence under the Armed
Career Criminal Act (“ACCA”), based on Descamps' prior state
convictions for burglary, robbery, and felony harassment.
133
S.Ct. 2276, 2282 (2013.)
The U.S. Supreme Court held that
“sentencing courts may not apply the modified categorical
approach when the crime of which the defendant was convicted has
a single, indivisible set of elements.” Id.
5 

raise a Mathis8 and Hinkle9 argument that his prior convictions
used to enhance his sentence pursuant to § 851, or § 4B1.1 no
longer qualify to support the erroneous designation?”
ECF No. 1 at 5.)

(Pet.,

As to the first issue, Petitioner contends

that his attorney failed to argue that, pursuant to Alleyne, the
§ 851 enhancement was required to be included in the indictment,
submitted to a jury, and found beyond a reasonable doubt.

(Id.

8

In Mathis v. United States, the defendant pleaded guilty to
being a felon in possession of a firearm, and at sentencing, the
Government asked the District Court to impose ACCA's 15–year
minimum penalty based on Mathis's five prior convictions for
burglary under Iowa law.
136 S.Ct. 2243, 2250 (2016).
In
holding that the lower court erred in applying the modified
categorical approach to determine the means by which Mathis
committed his prior crimes, the Court explained,
the modified approach serves—and serves
solely—as a tool to identify the elements of
the crime of conviction when a statute's
disjunctive phrasing renders one (or more)
of them opaque. See Descamps, 570 U.S., at –
–––, 133 S.Ct., at 2285. It is not to be
repurposed as a technique for discovering
whether a defendant's prior conviction, even
though for a too-broad crime, rested on
facts (or otherwise said, involved means)
that also could have satisfied the elements
of a generic offense.
Id. at 2253-54.
9

In United States v. Hinkle, 832 F.3d 569, 570 (5th Cir. 2016),
the Fifth Circuit Court of Appeals granted the petitioner relief
under 28 U.S.C. § 2255 based on Mathis, finding the careeroffender enhancement did not apply to Hinkle because Hinkle's
conviction for delivery of a controlled substance is not a
“controlled substance offense” within the meaning of the
Guidelines. Id.
6 

at 10.)

As to the second issue, Petitioner argues that, based

on the holding in Mathis, “he is actually innocent of being a
career criminal, or being eligible for an § 851 enhancement.”
(Id. at 13.)
II.

DISCUSSION
“[A] federal prisoner's first (and most often only) route

for collateral review of his conviction or sentence is under §
2255.”

Bruce v. Warden Lewisburg USP, No. 14-4284, 2017 WL

3597705, at *4 (3d Cir. Aug. 22, 2017).
provided a saving clause in § 2255(e):

Congress, however,

“a federal prisoner may

resort to § 2241 only if he can establish that ‘the remedy by
motion [under § 2255] is inadequate or ineffective to test the
legality of his detention’”
Congress

added

significant

Id. (citations omitted.)
gatekeeping

provisions

to

In 1996,
§

2255,

including that “a federal prisoner may only file a second or
successive motion under § 2255 on the basis of ‘newly discovered
evidence’ or ‘a new rule of constitutional law, made retroactive
to cases on collateral review by the Supreme Court, that was
previously unavailable.’” Id. (quoting 28 U.S.C. § 2255(h)).
The Third Circuit first addressed the § 2255 saving clause
in In re Dorsainvil, 119 F.3d 245 (3d Cir. 1997).

Id. at *5.

Dorsainvil was denied permission to file a second or successive
§ 2255 motion where he relied on a recent Supreme Court case
that announced a new statutory rule that “rendered noncriminal
7 

the conduct for which he was convicted.”

Id.

Section 2255(h)

permits second or successive § 2255 motions only on a “new rule
of constitutional law, made retroactive to cases on collateral
review by the Supreme Court, that was previously unavailable”
(emphasis added.)
Dorsainvil argued that § 2255 was inadequate or ineffective
to test the legality of his detention because the second or
successive

provision

precluded

him

from

arguing

that

he

was

innocent of the crime of conviction based on a new statutory
interpretation of the crime by the Supreme Court.
Dorsainvil, 119 F.3d at 248.)

Id. (citing

The Third Circuit agreed, holding

that “in the unusual situation where an intervening change in
statutory interpretation runs the risk that an individual was
convicted of conduct that is not a crime, and that change in the
law applies retroactively in cases on collateral review, he may
seek another round of post-conviction review under § 2241.”

Id.

In subsequent cases, petitioners sought to use the § 2255
saving clause when a recent Supreme Court case rendered the
petitioner

innocent

of

a

sentencing

enhancement.

Okereke v. U.S., 307 F.3d 117, 120 (3d Cir. 2002).

See

The Third

Circuit declined to extend the Dorsainvil exception, stating:
[u]nlike the intervening change in law in In
re Dorsainvil that potentially made the
crime
for
which
that
petitioner
was
convicted non-criminal, Apprendi [v. New
Jersey, 530 U.S. 466 (2000)] dealt with
8 

e.g.

sentencing and did not render conspiracy to
import heroin, the crime for which Okereke
was convicted, not criminal.
Id.
In

Jackman

v.

Shartle,

the

Third

Circuit

held

that

the

petitioner could not rely on § 2255’s saving clause to bring his
claims under § 2241 where,
[h]e relies on the recent United States
Supreme Court case Alleyne v. United States,
––– U.S. ––––, 133 S.Ct. 2151, 186 L.Ed.2d
314 (2013), to support his petition.
Alleyne is an extension of Apprendi v. New
Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147
L.Ed.2d 435 (2000), which held that that
defendants have the Sixth Amendment right to
a jury finding beyond a reasonable doubt of
all facts that increase the penalty for a
crime beyond the statutory maximum sentence.
Specifically, Alleyne overruled the Supreme
Court's decision in Harris v. United States,
536 U.S. 545, 122 S.Ct. 2406, 153 L.Ed.2d
524 (2002), and held that the rule of
Apprendi applies to facts that increase the
statutory minimum sentence. Because we have
held that Apprendi claims must be brought
pursuant to § 2255, not § 2241, see Okereke,
307 F.3d at 120–21, it follows that Alleyne
claims must be brought pursuant to § 2255 as
well.
535 F. App’x 87, 89 (3d Cir. 2013).
Petitioner seeks to challenge the basis for his sentencing
enhancement under 21 U.S.C. § 851 and U.S.S.G. § 4B1.1 based on
Supreme Court decisions made after his conviction and sentence,
and after his first § 2255 motion was denied.

Petitioner was

convicted for violation of 8 U.S.C. §§ 846, 841(a)(1), and he
9 

does not contend that retroactive Supreme Court cases render him
innocent of the crimes of conviction.

Therefore, his claims do

not fit within the narrow Dorsainvil exception, which permits
jurisdiction under § 2241 only where “an intervening change in
statutory interpretation runs the risk that an individual was
convicted of conduct that is not a crime, and that change in the
law

applies

retroactively

in

cases

on

collateral

review.”

Dorsainvil, 119 F.3d at 248.
III. CONCLUSION
This Court lacks jurisdiction over the § 2241 petition.
Petitioner has already brought a motion to vacate, set aside or
correct a sentence under 28 U.S.C. § 2255 in the sentencing
court.

Therefore, he must seek permission from the Eleventh

Circuit Court of Appeals if he wishes to bring his present claim
in a second or successive petition under 28 U.S.C. § 2255(h).
An appropriate Order follows.
s/Renée Marie Bumb__________
RENÉE MARIE BUMB
United States District Judge
Dated: September 6, 2017

10