BRILEY v. ORTIZ

Filing 3

OPINION. Signed by Judge Renee Marie Bumb on 9/26/17. (jbk, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CAMDEN VICINAGE

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JAY BONANZA BRILEY,
Petitioner,
v.

MR. ORTIZ, Warden,
FCI Fort Dix,
Respondent.

Civ. Action No. 17-6883 (RMB)

OPINION

BUMB, District Judge
On

September

8,

2017,

Petitioner,

Jay

Bonanza

Briley

(“Briley”), presently incarcerated in FCI Fort Dix, in Fort Dix,
New Jersey, filed a petition for writ of habeas corpus under 28
U.S.C. § 2241, seeking immediately release and vacation of his
sentence for supervised release and restitution.
1.)
IFP

(Pet., ECF No.

Petitioner has established his financial eligibility for
status,

and

his

IFP

application

(ECF

No.

1-1)

will

be

granted.
Rule 4 of the Rules Governing Section 2254 Cases in the
United States District Courts, applicable to 28 U.S.C. § 2241
through Rule 1, scope of the rules, provides, in relevant part:

The
judge
must
promptly
examine
[the
petition].
If 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 and direct the clerk to notify the
petitioner.
If
the
petition
is
not
dismissed,
the
judge
must
order
the
respondent to file an answer, motion, or
other response within a fixed time, or to
take other action the judge may order.
For the reasons discussed below, the Court dismisses the
petition.
I.

BACKGROUND
This is Briley’s third attempt to gain early release based

on an alleged error in his Pre-Sentence Report (“PSR.”)

In

Civil Action 17-1750(RMB), Petitioner alleged his PSR contained
inaccurate medical conclusions, preventing him from removing a
Public Safety Factor from his prison records and obtaining a
lower

security

early

release

classification
to

home

that

confinement.

would

permit

(Briley

v.

him

to

seek

Ortiz,

Civ.

Action No. 17-1750(RMB) (“Action 1750”) (D.N.J.) (Pet., ECF No.
1.))

This Court dismissed Action 1750 because Petitioner did

not state a cognizable Due Process Claim .

(Id., Opinion, ECF

No. 3.)
In Action 3535, Petitioner sought immediate release to home
confinement pursuant to 18 U.S.C. § 3621(b).

(Briley v. Ortiz,

Civ. Action No. 17-3535(RMB) (“Action 3535”) (D.N.J.) (Pet., ECF
No. 1.)

The Court dismissed Action 3535 because the only relief
2

habeas relief available pursuant to 18 U.S.C. § 3821(b) is an
order directing the BOP to consider whether Briley should be
transferred pursuant to § 3621(b).
Briley

requests

the

following

relief

based

on

the

same

facts he alleged in Action 1750, that his probation officer
failed to correct errors in his PSR:
Plaintiff request a Order from this Court to
Warden Ortiz that the Plaintiff is to be
immediately released from incarceration at
Ft. Dix, FCI, to remove his three years of
supervise
release
and
to
remove
his
restitution
obligation
because
the
Plaintiff’s USPO falsely stated erroneous
claims to justify the Plaintiff’s long term
incarceration, restitution, and deprivation
of serving his time at a Camp.
(Pet., ECF No. 1, ¶16.)
II.

DISCUSSION
28

U.S.C.

§

2241(c)(3)

provides

“[t]he

writ

of

habeas

corpus shall not extend to a prisoner unless—[] He is in custody
in violation of the Constitution or laws or treaties of the
United States.”

However, the presumptive means for a federal

prisoner to challenge the validity of a conviction or sentence
is through a motion to vacate, set aside or correct the sentence
under 28 U.S.C. § 2255.
120 (3d Cir. 2002).

Okereke v. United States, 307 F.3d 117,
A petitioner can resort to § 2241 for

relief only if the remedy provided by § 2255 is inadequate or
ineffective

to

test

the

legality

3

of

his

detention.

In

re

Dorsainvil, 119 F.3d 245, 249–51 (3d Cir.1997). A § 2255 motion
is not “inadequate or ineffective” simply because the petitioner
cannot meet the gatekeeping requirements of § 2255.
307

F.3d

at

120.

A

§

2255

motion

is

not

Okereke,

inadequate

or

ineffective solely because the sentencing court denied relief.
Cradle v. United States ex rel. Miner, 290 F.3d 536, 539 (3d
Cir. 2002) (per curiam).
By challenging information in his PSR that was used to
sentence him, and seeking relief in the form of vacation of his
sentence

for

supervised

release,

restitution,

and

immediate

release, Briley is challenging the validity of his conviction or
sentence.

Briley

has

already

brought

motion in his sentencing court.

more

than

one

§

2255

See U.S. v. Briley, 12cr482

(E.D. Va. May 26, 2016) (ECF No. 217) (dismissing Rule 60(b)
motion without prejudice to Briley’s right to move the Fourth
Circuit for leave to file a successive § 2255 motion raising
claim that exculpatory medical evidence was withheld from him).
Briley must now get permission from the 4th Circuit Court
of Appeals before he can bring a second or successive § 2255
motion.

See 28 U.S.C. § 2255(h) (“[a] second or successive

motion must be certified as provided in section 2244 by a panel
of the appropriate court of appeals . . .”)

Petitioner cannot

use § 2241 to get around the gatekeeping requirements of § 2255.
See

Bowens

v.

U.S.,

508

F.

App’x
4

96,

98-99

(3d

Cir.

2013)

(finding the petitioner’s unsuccessful pursuit of relief under §
2255, and the fact that he was barred from filing a successive §
2255 motion, did not establish the inadequacy of relief § 2255.)
Therefore, Petitioner has not stated a cognizable habeas claim
under § 2241.
III. CONCLUSION
For the reasons discussed above, the Court dismisses the
petition for a writ of habeas corpus under 28 U.S.C. § 2241 for
lack of jurisdiction.
An appropriate Order follows.
Dated:

September 26, 2017
s/Renée Marie Bumb
Renée Marie Bumb
United States District Judge

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