ODDMAN v. ORTIZ et al

Filing 6

OPINION. Signed by Judge Renee Marie Bumb on 6/5/2019. (rtm, )(nm)

NOT FOR PUBLICATION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
asserted 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.)
On September 19, 2018, the Court dismissed the petition for lack
of jurisdiction. (Order, ECF No. 4.) Now before the Court is
Petitioner’s motion to alter or amend judgment pursuant to Federal
Rule of Civil Procedure 59(e) (“Mot. to Alter/Amend.”) For the

reasons discussed below, the Court will deny the motion.
I.

BACKGROUND
Petitioner, a Jamaican citizen, is serving a 360-month term

of imprisonment, subsequently reduced under 18 U.S.C. § 3582 to
235 months, after 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; Petr’s Mem., ECF No. 1-5 at 1.) 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 (Id., Judgment, ECF
No. 469.) After his appeal was denied, Petitioner filed multiple
motions under 28 U.S.C. § 2255 and other motions challenging his
sentence, all of which were denied or otherwise dismissed. U.S. v.
Odman, 47 F. App’x 221 (4th Cir. Sept. 25, 2002) (per curiam),
Odman v. U.S., No. 4:96CR53, 2005 WL 3409656 (W.D.N.C. Dec. 9,
2005).
In

his

§

2241

petition,

Petitioner

asserted

that

the

sentencing court imposed a sentence in excess of the statutory
maximum authorized by Congress, violating the Separation of Powers
doctrine. (Petr’s Mem., ECF No. 1-5 at 1.) Petitioner attached to

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 

his petition excerpts from the Government’s appellate brief, in
which he claims the Government conceded that the Jury verdict
violated 21 U.S.C. § 841(b)(1)(C). (Petr’s Mem., ECF No. 1-5 at 1;
Pet., Ex. A, ECF No. 1-3 at 2-3.) Exhibit B to the petition is
Petitioner’s

superseding

Government’s

appellate

indictment

brief,

in

and

which

an

excerpt

Petitioner

from

the

argues

the

Government “fraudulently defended the sentence of the court as
being authorized based on the government serving Petitioner notice
by and through the superseding indictment and filing the required
21 U.S.C. § 851 notice. (Id.; Pet., Ex. B, ECF No. 1-3 at 5-10.)
Petitioner further explains:
the fallacy with this position is that the
Court struck the “notice from the indictment
based on the premise it was legally impossible
for Petitioner’s sentence could be aggravated
based on a prior conviction which came years
after the instant offense. In addition,
Probation also determined that the §851 notice
was inapplicable. See Exhibit C(excerpt from
PSI). The Sentencing Court exceeded its
authority in imposing a sentence of 30 years.
(Petr’s Mem., ECF No. 1-5 at 3; Pet., Ex. C, ECF No. 1-3 at 7.)
Petitioner argued that Section 2255 is an ineffective or inadequate
remedy because § 2255 applies only to “final” sentences, and
illegal, unauthorized sentences can never be final. (Mot. to
Alter/Amend, ECF No.5 at 4.)
This Court held that it lacked jurisdiction under § 2241
because Petitioner’s challenge to the length of his sentence should

3 

have been brought under § 2255 and 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). (Opinion, ECF No. 3 at 6.)
II.

DISCUSSION
Federal Rule of Civil Procedure 59(e) provides that “[a]

motion to alter or amend a judgment must be filed no later than 28
days after the entry of the judgment.” Petitioner’s motion was
timely.
When a party seeks reconsideration of a judgment, the judgment
may be altered or amended if the party seeking
reconsideration shows at least one of the
following grounds: (1) an intervening change
in the controlling law; (2) the availability
of new evidence that was not available when
the court granted the motion for summary
judgment; or (3) the need to correct a clear
error of law or fact or to prevent manifest
injustice.
Max's Seafood Cafe ex rel. Lou-Ann, Inc. v. Quinteros, 176 F.3d
669, 677 (3d Cir. 1999) (citing North River Ins. Co. v. CIGNA
Reinsurance Co., 52 F.3d 1194, 1218 (3d Cir. 1995)).
Here, Petitioner asserts his claim under the third prong, the
need to correct a clear error of law or fact to prevent manifest
injustice. (Mot. to Alter/Amend, ECF No. 5 at 1.) Petitioner
contends

that

(1)

the

Court’s

ruling

is

an

unconstitutional

suspension of the writ of habeas corpus; (2) the Court overlooked
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critical facts including (a) Petitioner was convicted by two courts
effectively
Petitioner,

rendering
who

is

§

2255

an

ineffective

alien,

was

or

inadequate;

sentenced

under

(b)
an

unconstitutional sentencing scheme (declared so after Petitioner's
conviction/direct

appeal

and

initial

§

2255);

(c)

In

re

Dorsainvail, 119 F.3d 245, 251 (3d Cir. 1997), focuses on when the
second

or

successive

limitations

would

cause

a

"complete

miscarriage of justice”; (d) Inadequacy and ineffectiveness must
be assessed as of the time the § 2241 petition is filed, and not
as of the time when the initial § 2255 was submitted; and (4)
Section 2255 by its express terms only applies to sentences that
are "final," because Petitioner's sentence is illegal it can never
be a final sentence. (Mot. to Alter/Amend, ECF No. 5.)
“[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.)
The substitution of a collateral remedy under 28 U.S.C. §
2255 for a writ of habeas corpus under § 2241 does not constitute
a suspension of the writ of habeas corpus if § 2255 is not
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inadequate nor ineffective to test the legality of a person's
detention. In re Dorsainvil, 119 F.3d 245, 249–50 (3d Cir. 1997)
(citing Swain v. Pressley, 430 U.S. 372, 381 (1977)); see McKoy v.
Apker, 156 F. App'x 494, 496 (3d Cir. 2005) (per curiam) (AEDPA's
restrictions

on

successive

petitions

“do

not

amount

to

a

‘suspension’ of the writ”) (citing  Felker v. Turpin, 518 U.S. 651,
664 (1996)).
Here, as in McKoy, Petitioner’s claim that his original
sentence was in error could have been presented in his § 2255
motion; and raising the claims in a § 2241 petition amounts to
nothing

more

than

an

attempt

to

circumvent

the

gatekeeping

provisions of § 2255. McKoy, 156 F. App’x at 496 (“McKoy’s claims
could have been presented in his § 2255 motion.”) Thus, § 2255 is
not

an

inadequate

nor

ineffective

means

of

challenging

Petitioner’s sentence, and dismissal of his § 2241 petition does
not constitute a suspension of the writ of habeas corpus.
Petitioner asserts that the Court overlooked the fact that he
was convicted by two courts, which he claims renders § 2255
inadequate

or

ineffective.

In

support

of

this

otherwise

unexplained argument, Petitioner cites to Cohen v United States,
593 F.2d 766, 771 & n.2 (6th Cir. 1979). Cohen is distinguishable
because

the

petitioner

was

challenging

the

execution

of

his

sentence rather than an impropriety in the sentence imposed on
him. Cohen v. United States, 593 F.2d at 770. Cohen’s theory was
6 

that

his

parole

process

was

tainted

because

the

prosecuting

attorneys, in three jurisdictions in which he entered into plea
agreements, “have not conducted themselves vis-a-vis the Parole
Board

in

accordance

with

their

obligations

under

the

plea

bargaining agreements.” Cohen, 593 F.2d at 770.
In this case, Petitioner contends the sentence imposed on him
by the U.S. District Court, Western District of North Carolina
was in excess of the maximum prescribed by law. “Under § 2255, the
sentencing

court

is

authorized

to

discharge

or

resentence

a

defendant if it concludes that it ‘was without jurisdiction to
impose such sentence, or that the sentence was in excess of the
maximum authorized by law, or is otherwise subject to collateral
attack.’” United States v. Addonizio, 442 U.S. 178, 185 (1979)
(citing United States v. Hayman, 342 U.S. 205, 216-217 (1952)).
This statute was intended to alleviate the burden of habeas corpus
petitions

filed

by

federal

prisoners

in

the

district

of

confinement, by providing an equally broad remedy in the more
convenient jurisdiction of the sentencing court. Id. The fact that
Petitioner cannot meet the gatekeeping requirements of § 2255 does
not render § 2255 an inadequate or ineffective remedy. See Okereke
v. U.S., 307 F.3d 117, 120-21 (3d Cir. 2002) (“under our In re
Dorsainvil decision, § 2255 was not inadequate or ineffective for
[the petitioner] to raise his Apprendi argument.”)
Petitioner also seeks reconsideration on the basis that he is
7 

an alien who was sentenced under an unconstitutional sentencing
scheme “(declared so after Petitioner's conviction/direct appeal
and initial § 2255).” (Mot. to Alter/Amend, ECF No. 5 at 3.)
Petitioner has not identified an intervening change in law that
made the crime for which he was convicted no longer criminal, as
would permit him under Dorsainvil to challenge his sentence under
§ 2241.
Petitioner also seeks reconsideration on the basis that the
inadequacy and ineffectiveness of a remedy under § 2255 must be
assessed as of the time the § 2241 petition is filed, and not at
the

time

when

the

initial

§

2255

was

submitted.

(Mot.

to

Alter/Amend, ECF No. 5 at 4.) Petitioner has not described why the
§ 2255 remedy was inadequate or ineffective as of the time the §
2241 petition was filed as opposed to the time when his § 2255
motion was decided on December 9, 2005. For example, he has not
identified an intervening change in law, that occurred after
December 9, 2005, that made the crime for which he was convicted
no longer a crime.
Finally, Petitioner argues that § 2255 expressly applies to
final sentences and an illegal sentence can never be final. (Id.)
This proposition does not relieve Petitioner of the gatekeeping
requirements of Section 2255.
III. CONCLUSION
For

the

reasons

discussed
8 

above,

Petitioner

has

not

established the need to correct a clear error of law or fact or to
prevent

manifest

injustice.

Therefore,

the

Court

denies

Petitioner’s motion to alter or amend judgment under Federal Rule
of Civil Procedure 59(e).

An appropriate order follows.

Dated: June 5, 2019
s/Renée Marie Bumb
RENÉE MARIE BUMB
United States District Judge

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