CLARK v. WARDEN FCI FAIRTON

Filing 2

OPINION. Signed by Judge Renee Marie Bumb on 10/17/2017. (tf, n.m.)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
________________________
KENT CLARK,
Petitioner,
v.

WARDEN, FCI FAIRTON,
Respondent.
________________________

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Civ. No. 17-5791 (RMB)

OPINION

BUMB, United States District Judge
On August 7, 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 28 U.S.C. § 2255 is inadequate or ineffective to
test the legality of his detention.
No. 1 at 13.)

(Mem. in Supp. of Pet., ECF

Petitioner asserts that he has newly discovered

evidence of actual innocence.

(Id.)

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.”

For

and

the

direct

the

reasons

Clerk

discussed

to

below,

notify
the

the
Court

construes the petition as a second or successive motion under §
2255, and transfers it to the Third Circuit Court of Appeals.
I.

BACKGROUND
In

1990,

Petitioner

was

convicted

in

the

United

States

District Court, District of New Jersey, for his involvement,
with a co-defendant, in the kidnapping and restraint of a mail
carrier

at

manager,

gun

point,

raping

entering

the

the

manager's

house

of

local

bank

handcuffing

daughter,

a

the

manager's 85-year old mother and his daughter, and calling the
manager at work and demanding a $200,000.00 ransom for their
release.

(Mem. in Supp. of Pet., ECF No. 1 at 11); U.S. v.

Devose, et al., 90-cr-00012-WHW (D.N.J.)

On February 7, 1991,

Petitioner was sentenced to a life-term in prison, plus five
years.

(Id.)

His conviction was affirmed on appeal.

(Id.);

U.S. v. Clark, 945 F.2d 396 (3d Cir. 1991) (table).
In June 1998, Petitioner challenged his conviction pursuant
to 28 U.S.C. § 2255, and the petition was denied.
Third

Circuit

appealabillity.

Court
(Id.

of
at

Appeals
12.)

denied
On

a

November

(Id.)

certificate
21,

2003,

The
of
the

district court construed three documents submitted by Petitioner
2 

as a motion to vacate his sentence pursuant to 28 U.S.C. § 2255.
(Id.)

Therein, Petitioner raised ten grounds for relief from

his conviction.

(Id.)

The court dismissed the action because

Petitioner failed to get permission from the Third Circuit Court
of Appeals to bring a second or successive petition.

Clark v.

United States, Civ. Action No. 98-03887(DRD) (D.N.J. Jan. 29,
2004; ECF No. 19.)
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.’”

Id. (citations omitted.)

Here, Petitioner has already filed a § 2255 motion, but
that does not make § 2255 an inadequate or ineffective remedy.
Pursuant to 28 U.S.C. § 2255(h)(1):
A second or successive motion must be
certified as provided in section 2244 by a
panel of the appropriate court of appeals to
contain—
(1) newly discovered evidence that, if
proven and viewed in light of the
evidence
as
a
whole,
would
be
sufficient to establish by clear and
3 

convincing evidence that no reasonable
factfinder would have found the movant
guilty of the offense.
Petitioner alleges he has newly discovered evidence establishing
his actual innocence.

Therefore, § 2255 does not deprive him of

a remedy for his claim.
III. CONCLUSION
For these reasons, The Court construes the present petition
as a motion under § 2255, and will transfer it1 to the Third
Circuit Court of Appeals for certification pursuant to 28 U.S.C.
§ 2255(h)(1).
An appropriate order follows.
Dated: October 17, 2017
s/Renée Marie Bumb
RENÉE MARIE BUMB
United States District Judge

1

28 U.S.C. § 1631 provides, in relevant part,
Whenever a civil action is filed in a court . . . and
that
court
finds
that
there
is
a
want
of
jurisdiction, the court shall, if it is in the
interest of justice, transfer such action or appeal
to any other such court in which the action or appeal
could have been brought at the time it was filed . .
.

4