HADAWAY v. KIRBY
Filing
4
OPINION. Signed by Judge Noel L. Hillman on 12/11/2017. (tf, n.m.)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
______________________________
:
:
:
Petitioner,
:
:
v.
:
:
WARDEN MARK KIRBY,
:
:
Respondent.
:
______________________________:
ANTHONY HADAWAY,
Civ. No. 17-4713 (NLH)
OPINION
APPEARANCES:
Anthony Hadaway
63691-066
Fairton
Federal Correctional Institution
P.O. Box 420
Fairton, NJ 08320
Petitioner Pro se
HILLMAN, District Judge
Petitioner Anthony Hadaway, 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 No. 1.)
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
expressed below, this Court will treat this as a motion to file
a second or successive habeas petition under 28 U.S.C. § 2255(h)
and transfer it to the Third Circuit Court of Appeals.
I.
BACKGROUND
On April 6, 2011, Petitioner was convicted in the Eastern
District of Pennsylvania of two counts of Hobbs Act Robbery in
violation of 18 U.S.C. § 1951(a) and sentenced to 293 months
imprisonment.
(Pet. 2.)
Petitioner states that the Career
Offender Enhancement was applied to him because of two prior
Pennsylvania robbery convictions that established a guideline
range of 210-262 months with a total offense level of
32 and a criminal history category of VI.
(Id.)
Petitioner
filed a direct appeal of his conviction and sentence, which were
affirmed by the Third Circuit.
United States v. Hadaway, 466 F.
App'x 154, 155 (3d Cir. 2012).
Petitioner thereafter filed a motion to vacate, set aside,
or correct sentence under 28 U.S.C. § 2255, which was dismissed
by the sentencing court as untimely.
Hadaway v. United States,
No. 09-161-01, 2014 WL 12709013, at *1 (E.D. Pa. July 23, 2014).
The Third Circuit denied a certificate of appealability.
v. Hadaway, Civil Action No. 14-4417 (3d Cir. 2014).
U.S.
Petitioner
then filed for permission to file a second or successive § 2255
petition based on the Supreme Court’s decision in Johnson v.
United States, 135 S.Ct. 2552 (2015), which was denied by the
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Third Circuit.
In re: Anthony Hadaway, Civil Action No. 16-2319
(3d Cir. 2016).
While his request was pending, Petitioner filed
a second § 2255 motion with the sentencing court, which he
subsequently withdrew.
Hadaway v. U.S., Civil Action No. 16-
3466 (E.D. Pa. 2016).
Shortly after he filed his second § 2255 petition,
Petitioner filed the instant § 2241 Petition.
(ECF No. 1.)
In
his Petition, Petitioner argues that pursuant to Mathis v.
United States, 136 S. Ct. 2243, 195 L. Ed. 2d 604 (2016), his
Pennsylvania state offenses no longer qualify him as a career
offender.
II.
A.
(Pet. 3.)
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).
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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, 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
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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
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.”
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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”)
(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
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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.
Because he has previously filed
a § 2255 petition, Petitioner must seek permission from the
United States Court of Appeals for the Third Circuit to bring a
second or successive petition under 28 U.S.C. § 2255(h) in the
Eastern District of Pennsylvania.
2244.
See 28 U.S.C. §§ 2255(h);
This Court will construe the present Petition as being
raised under 28 U.S.C. § 2255, and, in the interest of justice,
will transfer it to the Third Circuit pursuant to 28 U.S.C. §
1631. 1
1
The Court will transfer this matter under § 1631 rather than
dismiss it because Petitioner may set forth a plausible claim under
Mathis, and to preserve Petitioner's filing date for statute of
limitations purposes. See Wyatt v. Warden FCI Fort Dix, No. 171335, 2017 WL 1367239, at *2 (D.N.J. Apr. 10, 2017) (transferring
a Mathis claim improperly brought in a § 2241); Felder v. Kirby,
No. 17-1534, 2017 WL 3736658, at *2 (D.N.J. Aug. 30, 2017) (same).
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III. CONCLUSION
For the foregoing reasons, the Petition will be transferred
to the Third Circuit.
An appropriate order follows.
Dated: December 11, 2017
At Camden, New Jersey
s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.
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