ODDMAN v. ORTIZ et al

Filing 3

OPINION. Signed by Judge Renee Marie Bumb on 9/19/2018. (tf, n.m.)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
________________________
OWEN ODDMAN aka CHARLES
LLEWELYN,
Petitioner,
v.

DAVID ORTIZ, et al.,
Respondents.
________________________

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Civ. No. 18-9391 (RMB)

OPINION

BUMB, United States District Judge
On May 18, 2018, Petitioner Owen Oddman, a prisoner confined
in the Federal Correctional Institution (“FCI-Fort Dix”) in Fort
Dix, 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, specifically that the sentencing court exceeded the
statutory maximum sentence for the offense of conviction. (Id.)
Pursuant to Rule 4 of the Rules Governing Section 2255 Cases
in the United States District Courts, applicable here for the
reasons discussed below, 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 and direct
the Clerk to notify the petitioner.” For the reasons discussed
below, the Court lacks jurisdiction under § 2241.
I.

BACKGROUND
On January 23, 2001, a jury in the United States District

Court, Western District of North Carolina found Petitioner guilty
of conspiracy to possess with intent to distribute and distribution
of cocaine and cocaine base in violation of 8 U.S.C. §§ 841(a) &
846. (Pet., ECF No. 1, ¶¶1-5.)

U.S. v. Odman, 4:96-cr-00053-MR-1

(W.D.N.C.) Jury Verdict, ECF No. 429).1 Judgment was entered on
August 6, 2001 and Petitioner was sentenced to a 360-month term of
imprisonment

and

a

5-year

term

of

supervised

release.

(Id.,

Judgment, ECF No. 469.)
Petitioner appealed his conviction (Id., Notice of Appeal,
ECF No. 468), and the Fourth Circuit Court of Appeals affirmed the
conviction on September 25, 2002.

U.S. v. Odman, 47 F. App’x 221

(4th Cir. Sept. 25, 2002) (per curiam). The U.S. Supreme Court
denied certification on February 23, 2004. Odman v. U.S., 537 U.S.
1211 rehearing denied 538 U.S. 995 (2003). After withdrawing his
first motion to vacate, set aside or correct sentence under 28

1

Available at www.PACER.gov. In the Western District of North
Carolina, Petitioner spelled his last name “Odman” although he now
refers to himself as “Oddman.”
2 

U.S.C. § 2255, Petitioner refiled on March 11, 2004. (Odman v.
U.S., No. 4:96CR53 (W.D.N.C.) 2255 Mot., ECF No. 24.) The District
Court denied relief under § 2255 on December 9, 2005. Odman v.
U.S., No. 4:96CR53, 2005 WL 3409656 (W.D.N.C. Dec. 9, 2005).
Petitioner appealed to the Fourth Circuit, and the Fourth Circuit
denied a certificate of appealability and dismissed the appeal on
July 27, 2006. U.S. v. Odman, 191 F. App’x 247 (4th Cir. 2006)
(per curiam). The U.S. Supreme Court denied certification on
February 26, 2007. Odman v. U.S., 549 U.S. 1258 (2007).
On August 13, 2012, the sentencing court granted Petitioner’s
motion to reduce sentence pursuant to 18 U.S.C. § 3582, and reduced
his term of imprisonment to 292-months. (Odman v. U.S., No.
4:96CR53 (W.D.N.C.) Order, ECF No. 686.)
On August 28, 2012, Petitioner filed a motion for correction
of illegal sentence. (Id., Mot. for Correction, ECF No. 691.)
Petitioner

argued,

pursuant

to

U.S.S.G.

§

5G1.3,

that

the

sentencing court erred by imposing a sentence consecutive to his
sentence in the Southern District of Florida, because the offense
in Florida was used to calculate his sentencing range. (Id. at 78.) The sentencing court denied the motion because Petitioner
sought relief under 18 U.S.C. § 3582, and the alleged error was
outside the scope of a sentence modification under § 3582. (Id.,
Order, ECF No. 696 at 2-3.)
Undeterred, on April 22, 2013, Petitioner filed a motion to
3 

vacate under § 2255, arguing that he was sentenced above the
maximum provided by statute, his sentence was imposed in violation
of the ex post facto clause, his sentence was imposed under an
unconstitutional sentencing scheme [pursuant to Apprendi], and he
alleged a speedy trial violation. (Odman v. U.S., No. 4:96CR53
(W.D.N.C.) Mem. in Supp. of Mot. to Vacate, ECF No. 713-1.) On
August 22, 2013, the sentencing court dismissed the motion as an
unauthorized successive petition. (Id., Order, ECF No. 719.) The
Fourth Circuit dismissed Petitioner’s appeal, and issued a Mandate
on May 20, 2014. (Id., USCA Judgment, ECF No. 722; Mandate, ECF
No. 726.)
Petitioner filed yet another motion to vacate under 28 U.S.C.
§ 2255 on April 28, 2014, once again arguing that his sentence
exceeded the statutory maximum. (Id., Mot. to Vacate, ECF No. 724.)
This motion was also denied as an unauthorized successive motion.
(Id., Order, ECF No. 737.) The Fourth Circuit denied a certificate
of

appealability

and

dismissed

Petitioner’s

appeal.

(Id.,

Unpublished USCA Opinion, ECF No. 731; Mandate, ECF No. 732.)
On

January

19,

2016,

the

sentencing

court

granted

Petitioner’s motion to reduce sentence under Amendment 782, and
reduced his term of imprisonment to 235 months. (Id., Order, ECF
No.

739.)

The

sentencing

court

denied

the

following

motions

subsequently filed by Petitioner, Motion to Correct Error in the
Record (ECF No. 741); motion to alter or amend judgment (ECF No.
4 

743); and motion for clarification of sentence (ECF No. 753). (Id.,
Orders, ECF Nos. 742, 744, 754.)
In

his

instant

§

2241

petition,

Petitioner

asserts

the

sentencing court imposed a sentence in excess of the statutory
maximum authorized by Congress, violating the Separation of Powers
doctrine. (Mem. of Law in Supp. of Pet., ECF No. 1-5 at 1.) He
further argues that Section 2255 is an ineffective or inadequate
remedy because § 2255 applies only to “final” sentences, and
illegal, unauthorized sentences can never be final. (Id. at 2.)
II.

DISCUSSION
Before the Court can reach the merits of the petition, it

must determine whether it has jurisdiction under 28 U.S.C. § 2241.
“[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, 868 F.3d 170, 178 (3d Cir. 2017).
Congress, however, provided a saving clause in § 2255(e):

“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.)
In the Third Circuit, there is an exception to the general
rule that a petitioner must challenge his conviction and sentence
in the sentencing court under § 2255, when the petitioner “had no
earlier opportunity to challenge his conviction for a crime that
5 

an intervening change in substantive law may negate.” In re
Dorsainvil, 119 F.3d 245, 251 (3d Cir. 1997); Bakhtiari v. Warden,
No. 18-1402, 2018 WL 3099899 at *1 (3d Cir. June 25, 2018) (per
curiam) (“To date, we have applied the inadequate or ineffective
savings

clause

exception

only

when

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.”)

(internal quotations omitted)). A remedy under § 2255 is not
inadequate or ineffective because the petitioner cannot meet the
stringent

gatekeeping

requirements

for

filing

a

second

or

successive § 2255 motion. Cradle v. U.S. ex rel. Miner, 290 F.3d
536, 539 (3d Cir. 2002).
Petitioner, having failed to get the relief he seeks in the
sentencing court, is attempting to get around the gatekeeping
requirements imposed by Congress under § 2255 by bringing his claim
in another jurisdiction under § 2241. Petitioner does not rely on
a retroactively applicable change in statutory interpretation that
renders him innocent of the substantive crime. See Hernandez v.
Martinez, 327 F. App’x 340, 343 (3d Cir. 2009) (rejecting the
argument that § 2255 was an inadequate and ineffective remedy for
claim that sentence exceeded the statutory maximum).
III. CONCLUSION
This Court lacks jurisdiction over the § 2241 petition. This
6 

Order does not preclude Petitioner from seeking permission with
the Fourth Circuit Court of Appeals to bring his claims in a
successive § 2255 motion in his sentencing court.

An appropriate order follows.

Dated: September 19, 2018
s/Renée Marie Bumb
RENÉE MARIE BUMB
United States District Judge

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