RIVERS v. ORTIZ
Filing
7
OPINION. Signed by Judge Jerome B. Simandle on 5/16/2018. (rtm, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
HONORABLE JEROME B. SIMANDLE
VIRGIL RIVERS,
Petitioner,
Civil Action
No. 17-10239 (JBS)
v.
OPINION
DAVID ORTIZ,
Respondent.
APPEARANCES:
Virgil Rivers, Petitioner pro se
#81378-158
FCI Fort Dix
Inmate Mail/Parcels
East: P.O. Box 2000
Fort Dix, NJ 08640
SIMANDLE, U.S. District Judge:
1.
Virgil Henrik Jr. Rivers Bey, a federal prisoner
confined at FCI Fort Dix, New Jersey, has filed a petition for a
writ of habeas corpus pursuant to 28 U.S.C. § 2241. Petition,
Docket Entry 1.
2.
Petitioner alleges he is being unlawfully confined at
FCI Fort Dix “under involuntary servitude labor with the inmate
population incarcerated on conviction of terrorism and drug
trafficking from inside countries of Mexico and South America.”
Id. at 2.
3.
He stated he is being held against his will “as a
(Kidnap Hostage)” after being arrested by New York Police
Department officers on September 29, 2003. Id. ¶ 1.
4.
Petitioner asked what was happening, and the officer
responded that Petitioner “was being seize[d] for committing a
crime!” Id. He then alleges he was taken to a basement with a
cage-like structure and was placed in a room “full [of] foreien
[sic] born Alien Vietnamese . . . , Mexicans, Iranianes [sic]
and Guatemalainas [sic].” Id. ¶ 3.
5.
Petitioner was then taken before a magistrate. Id. ¶
6.
Petitioner claims he is of Moorish-American
4.
nationality and cites the Barbary Treaty. Id. ¶ 7. He states he
has been held hostage for the past fifteen years in violation of
the Thirteenth and Fourteenth Amendments. Id. ¶ 8.
7.
He therefore demands the Court issue a writ of habeas
corpus under § 2241.
8.
The Court administratively terminated the petition on
November 3, 2017 due to Petitioner’s failure to use the correct
form. Docket Entry 2.
9.
On March 23, 2018, Petitioner sent a letter to the
Court demanding it issue the writ. Docket Entry 3.
10.
On April 10, 2018, the Court again informed Petitioner
that he had to fill out the required form and that the matter
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would be reopened once the Court received the form. Docket Entry
4.
11.
Instead of following the Court’s instructions,
Petitioner filed a writ of praecipe requesting the Court to
serve the petition. Docket Entry 5. Petitioner included his
birth certificate as an exhibit.
12.
Section 2241 “confers habeas jurisdiction to hear the
petition of a federal prisoner who is challenging not the
validity but the execution of his sentence.” Coady v. Vaughn,
251 F.3d 480, 485 (3d Cir. 2001).
13.
Petitioner brings this petition as a pro se litigant.
The Court has an obligation to liberally construe pro se
pleadings and to hold them to less stringent standards than more
formal pleadings drafted by lawyers. Erickson v. Pardus, 551
U.S. 89, 94 (2007); Higgs v. Attorney Gen. of the U.S., 655 F.3d
333, 339 (3d Cir. 2011), as amended (Sept. 19, 2011) (citing
Estelle v. Gamble, 429 U.S. 97, 106 (1976)).
14.
A pro se habeas petition and any supporting
submissions must be construed liberally and with a measure of
tolerance. See Royce v. Hahn, 151 F.3d 116, 118 (3d Cir. 1998);
Lewis v. Attorney Gen., 878 F.2d 714, 721–22 (3d Cir. 1989);
United States v. Brierley, 414 F.2d 552, 555 (3d Cir. 1969),
cert. denied, 399 U.S. 912 (1970).
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15.
Nevertheless, a federal district court must dismiss a
habeas corpus petition without ordering an answer if it appears
from the face of the petition that the petitioner is not
entitled to relief. 28 U.S.C. § 2254 Rule 4 (made applicable
through Rule 1(b)); see also McFarland v. Scott, 512 U.S. 849,
856 (1994); Siers v. Ryan, 773 F.2d 37, 45 (3d Cir. 1985), cert.
denied, 490 U.S. 1025 (1989).
16.
Petitioner has failed to comply with the Court’s
orders to fill out the required form for habeas corpus cases on
two occasions. The purpose behind the form is to provide the
Court with the information necessary to determine whether an
answer to the petition is warranted. See Mayle v. Felix, 545
U.S. 644, 655 (2005).
17.
“Under Rule 8(a), applicable to ordinary civil
proceedings, a complaint need only provide ‘fair notice of what
the plaintiff's claim is and the grounds upon which it rests.’
Habeas Corpus Rule 2(c) is more demanding.” Id. (quoting Conley
v. Gibson, 355 U.S. 41, 47 (2005)).
18.
“Under Habeas Corpus Rule 4, if ‘it plainly appears
from the petition ... that the petitioner is not entitled to
relief in district court,’ the court must summarily dismiss the
petition without ordering a responsive pleading.” Id.
19.
Nothing in the petition as filed warrants an answer
from the United States. The Court takes judicial notice of a
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judgment of conviction entered in the United States District
Court for the Eastern District of New York for conspiracy to
commit bank robbery, 18 U.S.C. § 371; bank robbery, 18 U.S.C. §
2113; and unlawful use of a firearm, 18 U.S.C. § 924(c)(1)(A).
United States v. Rivers, No. CR-03-1120(S-3)-2(FB) (E.D.N.Y.
Mar. 10, 2006). At best, the petition is a challenge to the
validity of the conviction and Petitioner’s continued
confinement based on that conviction. This challenge would have
to be brought under 28 U.S.C. § 2255. See Jackman v. Shartle,
535 F. App’x 87, 88 (3d Cir. 2013) (per curiam) (citing Okereke
v. United States, 307 F.3d 117, 120 (3d Cir. 2002)).
20.
“[Section] 2255 expressly prohibits a district court
from considering a challenge to a prisoner's federal sentence
under § 2241 unless the remedy under § 2255 is ‘inadequate or
ineffective to test the legality of his detention.’” Snyder v.
Dix, 588 F. App’x 205, 206 (3d Cir. 2015) (quoting 28 U.S.C. §
2255(e)); see also In re Dorsainvil, 119 F.3d 245, 249 (3d Cir.
1997).
21.
There are no facts in the petition suggesting § 2255
is inadequate or ineffective to challenge Petitioner’s arrest,
conviction, or continued confinement.
22.
Because Petitioner has failed to comply with multiple
Court orders and his petition does not state a claim for relief
under § 2241, the Court will dismiss the petition.
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23.
An accompanying Order will be entered.
May 16, 2018
Date
s/ Jerome B. Simandle
JEROME B. SIMANDLE
U.S. District Judge
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