WYATT v. ORTIZ

Filing 6

OPINION. Signed by Judge Robert B. Kugler on 10/8/2020. (tf, n.m.)

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UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
_________________________________________
THOMAS G. WYATT,
:
:
Petitioner,
:
Civ. No. 19-15363 (RBK)
:
v.
:
:
DAVID ORTIZ,
:
OPINION
:
Respondent.
:
_________________________________________ :
Before the Court is Petitioner’s Petition for Writ of Habeas Corpus pursuant to 28 U.S.C.
§ 2241. (ECF No. 1). Respondent originally filed a request to transfer this matter to the Eastern
District of Virginia but has since withdrawn that request as moot. (ECF No. 4). Respondent now
requests that the Court dismiss the Petition for lack of jurisdiction. (ECF No. 5). Petitioner did not
file a response to any of Respondent’s filings. For the following reasons, the Court will grant
Respondent’s request to dismiss and dismiss the Petition for lack of jurisdiction.
I.

BACKGROUND

In 2010, Petitioner pleaded guilty to possession with intent to distribute a detectable
amount of cocaine base in violation of 21 U.S.C. § 841(a)(1) and (c), and being a felon in
possession of a firearm, in violation of 18 U.S.C. § 922(g)(1), additionally, a jury found Petitioner
guilty of possession of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C.
§ 924(c). (United States v. Wyatt, No. 3:09-cr-00148, (E.D. Va.), ECF No. 49). In February of
2011, the United States District Court for the Eastern District of Virginia sentenced Petitioner to,
among other things, 132 months in prison. (Id.).
On or about July 15, 2019, Petitioner filed the instant Petition, arguing that his conviction
for being a felon in possession of a firearm under 18 U.S.C. § 922(g)(1), is invalid due to the
Supreme Court’s decision in Rehaif v. United States, 139 S. Ct. 2191 (2019).

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In February of 2020, Respondent filed a request to transfer the Petition to the Eastern
District of Virginia and in May of 2020, Respondent withdrew that request as moot. (ECF Nos. 4,
5). On or about May 4, 2020, Petitioner filed a § 2255 motion in the Eastern District of Virginia,
raising his Rehaif claim. (United States v. Wyatt, No. 3:09-cr-00148, (E.D. Va.), ECF No. 53).
Petitioner had received Respondent’s request to transfer and filed his § 2255 “[a]nticipating” this
Court’s ruling and “wishing to avoid any issue with timely-filing.” (United States v. Wyatt, No.
3:09-cr-00148, (E.D. Va.), ECF No. 53-2).
Thereafter, Respondent filed a request to dismiss the instant Petition for lack of jurisdiction.
(ECF No. 5). Petitioner did not file an opposition.
II.

STANDARD OF REVIEW

“Habeas corpus petitions must meet heightened pleading requirements.” McFarland v.
Scott, 512 U.S. 849, 856 (1994). A petition must “specify all the grounds for relief” and set forth
“facts supporting each of the grounds thus specified.” 28 U.S.C. § 2254 Rule 2(c) (amended Dec.
1, 2004), applicable to § 2241 petitions through Habeas Rule 1(b). A court addressing a petition
for writ of habeas corpus “shall forthwith award the writ or issue an order directing the respondent
to show cause why the writ should not be granted, unless it appears from the application that the
applicant or person detained is not entitled there.” 28 U.S.C. § 2243.
Thus, “[f]ederal courts . . . [may] dismiss summarily any habeas petition that appears
legally insufficient on its face.” McFarland, 512 U.S. at 856. More specifically, a district court
may “dismiss a [habeas] petition summarily when it plainly appears from the face of the petition
and any exhibits . . . that the petitioner is not entitled to relief.” Lonchar v. Thomas, 517 U.S. 314,
320 (1996).

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III.

DISCUSSION

Petitioner challenges part of his conviction and sentence under 28 U.S.C. § 2241.
Generally, however, a person must bring a challenge to the validity of a federal conviction or
sentence under 28 U.S.C. § 2255. See Jackman v. Shartle, 535 F. App’x 87, 88–89 (3d Cir. 2013)
(citing Okereke v. United States, 307 F.3d 117, 120 (3d Cir. 2002)). This is true because § 2255
prohibits a district court from entertaining a challenge to a prisoner’s federal sentence through §
2241 unless the remedy under § 2255 is “inadequate or ineffective.” See 28 U.S.C. § 2255(e).
Indeed, § 2255(e) states that:
An application for a writ of habeas corpus in behalf of a prisoner
who is authorized to apply for relief by motion pursuant to this
section, shall not be entertained if it appears that the applicant has
failed to apply for relief, by motion, to the court which sentenced
him, or that such a court has denied him relief, unless it also appears
that the remedy by the motion is inadequate or ineffective to test the
legality of his detention.
A § 2255 motion is “inadequate or ineffective,” which permits a petitioner to resort to a §
2241 petition, “only where the petitioner demonstrates that some limitation or procedure would
prevent a § 2255 proceeding from affording him a full hearing and adjudication of his wrongful
detention claim.” Cradle v. U.S. ex rel. Miner, 290 F.3d 536, 538 (3d Cir. 2002). However, § 2255
“is not inadequate or ineffective merely because the sentencing court does not grant relief, the oneyear statute of limitations has expired, or the petitioner is unable to meet the stringent gatekeeping
requirements of . . . § 2255.” Id. at 539. “It is the inefficacy of the remedy, not the personal
inability to use it, that is determinative.” Id. at 538. “The provision exists to ensure that petitioners
have a fair opportunity to seek collateral relief, not to enable them to evade procedural
requirements.” Id. at 539 (citing In re Dorsainvil, 119 F.3d 245, 251–52 (3d Cir. 1997)).
In Dorsainvil, the Third Circuit held that the remedy under § 2255 is “inadequate or
ineffective,” permitting resort to § 2241 (a statute without timeliness or successive petition
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limitations), where a prisoner who previously had filed a § 2255 motion on other grounds “had no
earlier opportunity to challenge his conviction for a crime that an intervening change in substantive
law may negate.” 119 F.3d at 251.
Nevertheless, the Third Circuit emphasized that its holding was not suggesting that a §
2255 motion was “inadequate or ineffective” merely because a petitioner is unable to meet the
strict gatekeeping requirements of § 2255. See id.
Thus, under Dorsainvil and its progeny, this Court would have jurisdiction over the Petition
if, and only if, Petitioner alleges: (1) his “actual innocence,” (2) as a result of a retroactive change
in substantive law that negates the criminality of his conduct, and (3) for which he had no other
opportunity to seek judicial review. See Bruce v. Warden Lewisburg USP, 868 F.3d 170, 180 (3d
Cir. 2017); Okereke, 307 F.3d at 120; Cradle, 290 F.3d at 539; Dorsainvil, 119 F.3d at 251–52.
Here, the Petition does not fall within the Dorsainvil exception because Petitioner had an
earlier opportunity to seek judicial review of his Rehaif claim. At the time he filed this Petition,
he had not yet filed a motion under § 2255. Although Petitioner’s judgment of conviction became
final in 2011, § 2255(f)(3) allows for a one-year limitation period to start from “the date on which
the right asserted was initially recognized by the Supreme Court, if that right has been newly
recognized by the Supreme Court and made retroactively applicable on collateral review.” See 28
U.S.C. § 2255(f)(3).
Although some district courts within the Fourth Circuit have held that Rehaif is not
retroactively applicable to cases on collateral review, “[n]either the Supreme Court nor the United
States Court of Appeals for the Fourth Circuit has addressed the issue.” See Boswell v. United
States, No. 09-38, 2020 WL 5415252, at *3 (N.D.W. Va. Aug. 13, 2020), report and
recommendation adopted, 2020 WL 5414566 (Sept. 9, 2020); Williams v. United States, No. 17241, 2019 WL 6499577, at *2 (W.D.N.C. Dec. 3, 2019).
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Indeed, as the Third Circuit has held, unlike second or successive motions under § 2255(h),
§ 2255(f)(3) “allows district courts and courts of appeals to make retroactivity decisions [in the
first instance]. United States v. Swinton, 333 F.3d 481, 487 (3d Cir. 2003).” United States v. Battle,
No. CR 16-017, 2020 WL 4925678, at *2 (W.D. Pa. Aug. 21, 2020).
Consequently, because Petitioner could have and did, bring his Rehaif claim in his
sentencing court under § 2255(f)(3), he had an earlier opportunity to raise his claim under § 2255.
See Chavis v. Ortiz, No. 19-16208, 2020 WL 2215802, at *1–2 (D.N.J. May 7, 2020) (finding that
petitioner had an earlier opportunity to raise his Rehaif claim under § 2255(f)(3)). Accordingly,
this Court does not have jurisdiction under § 2241 to consider the instant Petition.
Whenever a party files a civil action in a court that lacks jurisdiction, “the court shall, if it
is in the interest of justice, transfer such action . . . to any other such court in which the action . . .
could have been brought at the time it was filed.” 28 U.S.C. § 1631. The Court finds that it is not
in the interest of justice to transfer the Petition because Petitioner has already filed a § 2255 motion,
raising his Rehaif claim, within one year of Rehaif, in the United States District Court for the
Eastern District of Virginia. (United States v. Wyatt, No. 3:09-cr-00148, (E.D. Va.), ECF No. 53).
Moreover, in that case, the Government did not oppose Petitioner’s § 2255 motion on timeliness
grounds. (United States v. Wyatt, No. 3:09-cr-00148, (E.D. Va.), ECF No. 61).
IV.

CONCLUSION

For the foregoing reasons, the Court will grant Respondent’s request to dismiss and dismiss
the Petition for lack of jurisdiction. An appropriate Order follows.

DATED: October 8, 2020

s/Robert B. Kugler
ROBERT B. KUGLER
United States District Judge
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