TELFAIR v. ORTIZ
OPINION. Signed by Judge Robert B. Kugler on 9/3/2021. (tf, n.m.)
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UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
TOMMIE H. TELFAIR,
Civil Action No. 20-20342 (RBK)
DAVID E. ORTIZ,
KUGLER, United States District Judge
Petitioner is a federal prisoner who was formerly incarcerated at FCI Fort Dix, in Fort Dix,
New Jersey, and is currently incarcerated at USP Canaan, in Waymart, Pennsylvania. He is
proceeding pro se with an Amended Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. §
2241 and pursuant to the common law writ of audita querela. (ECF No. 7.) Additionally,
Petitioner filed letters as supplemental briefing, and the Court has considered those letters as part
of his Petition. (ECF Nos. 9, 10, 12.) For the reasons stated below, the Court will dismiss the
Petition for lack of jurisdiction.
In a recent Opinion, Judge Mcnulty set forth the procedural history of Petitioner’s
numerous cases as follows:
In February 2010, Petitioner was convicted by a jury of conspiracy
to distribute and possess with intent to distribute 1,000 grams or
more of heroin, in violation of 21 U.S.C. §§ 841(a)
and 841(b)(1)(A)(I), and of distribution and possession with intent
to distribute 100 grams or more of heroin, in violation of 21 U.S.C.
§§ 841(a), 841(b)(1)(B), and 18 U.S.C. § 2. See Judgment of
Conviction, United States v. Telfair, Crim. No. 08-0757 (D.N.J.
Nov. 23, 2011), DE 95. Petitioner was sentenced to 240 months’
imprisonment. See id. The U.S. Court of Appeals for the Third
Circuit affirmed Petitioner’s conviction and sentence. See United
States v. Telfair, 507 F. App’x , 179 (3d Cir. 2012).
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Petitioner’s request for a writ of certiorari to the United States
Supreme Court was denied. See Telfair v. United States, 571 U.S.
866 (2013), rehearing denied, 571 U.S. 1105 (2013).
In October 2013, Petitioner filed a motion to vacate, set aside, or
correct his sentence pursuant to 28 U.S.C. § 2255. See Telfair
v. United States, Civ. No. 13-6585 (D.N.J. Oct. 25, 2013), DE 1. The
Honorable Susan D. Wigenton, U.S.D.J., granted Petitioner an
evidentiary hearing on his Miranda claim, but denied the
rest. See Order, Telfair, Civ No. 13-6585 (Feb. 17, 2016), DE 37.
Following the evidentiary hearing, Judge Wigenton denied
Petitioner’s Miranda claim as well. See Order, Telfair, Civ No. 136585 (Sept. 25, 2017), DE 59. The Third Circuit denied Petitioner’s
request for a certificate of appealability. See Order of
USCA, Telfair, Civ. No. 13-6585 (June 19, 2018), DE 74.
Thereafter, Petitioner filed an untimely motion for reconsideration
of the denial of his § 2255, as well as a motion under Fed. R. Civ. P.
60(b), which incorporated a request for leave to file a second § 2255
motion. Both of those motions were denied. See Opinion and
Order, Telfair, Civ No. 13-6585 (Nov. 18, 2018), DE 78, 79.
In August 2016, while his § 2255 matter was still pending, Petitioner
filed his first petition for a writ of habeas corpus pursuant to 28
sentence. See Petition, Telfair v. United States, Civ. No. 16-5085
(D.N.J. Aug. 19, 2013), DE 1. Judge Wigenton dismissed the
petition without prejudice, finding that it was essentially a second
motion to vacate his sentence under § 2255 and that any new claims
Petitioner raised were time-barred. See Opinion, Telfair, Civ. No.
16-5085 (Sept. 20, 2016), DE 3. Petitioner filed a motion for
reconsideration, which the Court denied on December 1,
2016. See Order, Telfair, Civ. No. 16-5085 (Dec. 1, 2016), DE 7.
The Third Circuit affirmed the dismissal of this § 2241
petition. See Telfair v. Attorney Gen. United States, et al., Civ. No.
16-4417 (3d Cir. Feb. 28, 2017). The Supreme Court denied
Petitioner’s for a writ of certiorari. See Telfair v. Sessions, Civ. No.
16-8636 (U.S. May 15, 2017).
In September 2016, Petitioner filed a second § 2241 petition before
then-Chief Judge Jerome B. Simandle, U.S.D.J. See Telfair v.
Lynch, et al., Civ. No. 16-5372, 2017 WL 3783693, at *1 (D.N.J.
Aug. 30, 2017). Judge Simandle dismissed the petition, finding that
it was duplicative of Petitioner’s first § 2241 petition before Judge
Wigenton. See id. at *1-2.
In 2017, Petitioner filed a third § 2241 petition. See Petition, Telfair
v. Ortiz, Civ. No. 17-6065 (D.N.J. Jul. 11, 2017), DE 1. Petitioner
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argued that the District Court was not a “true” federal court and that
it therefore lacked personal jurisdiction over him. See id. Judge
Wigenton found that the petition was essentially another § 2255
motion. See Order, Telfair, Civ. No. 17-6065 (Sept. 28, 2017), DE
3. Construing the petition as a § 2255 motion, Judge Wigenton
determined that Petitioner’s newly raised claims were timebarred. See id. The petition was dismissed without prejudice. See id.
Beginning in November 2018 and ending in May 2019, Petitioner
filed a series of motions and letter applications pursuant to Fed. R.
Crim. P. 35 and 18 U.S.C. § 3582. Those applications, filed in his
criminal case, sought to challenge or modify his sentence. I denied
these motions. See Opinion and Order Telfair, Crim. No. 08-0757
(Sept. 4, 2019), DE 117.
In April 2019, Petitioner filed a fourth § 2241
petition. See Petition, Telfair v. United States, Civ. No. 19-9379
(D.N.J. Apr. 8, 2019), DE 1. Here, Petitioner again challenged his
conviction arguing that, under the savings clause and pursuant to the
Supreme Court’s decision in Rosemond v. United States, 572 U.S.
65 (2014), he was actually innocent of the offenses for which he had
been convicted. See id. Judge Simandle dismissed the petition,
finding that the Court lacked jurisdiction over the § 2241 case
because the Petitioner had the opportunity to, but did not, raise this
claim in his § 2255 motion. See Opinion, Telfair v. United States,
Civ. No. 19-9379 (June 21, 2019), DE 3.
In October 2019, Petitioner filed this, his fifth § 2241 petition in this
action. (DE 1.) Petitioner simultaneously filed a motion for bail. (DE
1-3.) Petitioner has also filed two supplemental briefs. (DE 3, 4.)
Telfair v. Ortiz, No. 19-18872, 2019 WL 5692143, at *1–2 (D.N.J. Nov. 4, 2019) (footnotes
omitted). In his fifth § 2241 petition, Petitioner raised:
numerous claims challenging his conviction, including: lack of
probable cause to arrest, unlawful detainment after “the conspiracy
charges . . . were desolved [sic]”; insufficient evidence; flawed jury
instructions; speedy trial violations; and ineffective assistance of
counsel. (DE 1-1, 3, 4.) Petitioner also argues that he should not
have been treated as a career offender, citing Johnson v. United
States, 135 S. Ct. 2551 (2015), and that he is factually innocent of
the charges against him, citing United States v. Rowe, 919 F.3d 752,
756 (3d Cir. 2019).
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Id. at *3. Ultimately, Judge McNulty dismissed the fifth § 2241 petition for lack of jurisdiction,
as none of the claims fell within the safety valve of § 2241. Id. at *3–4.
Thereafter, Petitioner filed various claims through a motion for compassionate release and
a motion under Federal Rule of Civil Procedure 60(b). Judge McNulty denied the motion for
compassionate release on the merits. United States v. Telfair, No. 08-757, 2021 WL 3185812, at
*2 (D.N.J. July 28, 2021). On the other hand, Judge Wigenton dismissed the Rule 60(b) motion
for lack of jurisdiction, finding that it was “in reality an attempt to file a second or successive §
2255 motion without leave of the Court of Appeals.” Telfair v. United States, No. 13-6585, 2020
WL 948753, at *2 (D.N.J. Feb. 27, 2020).
In the present case, Petitioner filed his initial § 2241 petition in December of 2020 and filed
the operative Amended Petition in April of 2021 (hereinafter “Petition”). In his Petition, Petitioner
raises various sentencing challenges, evidentiary challenges, and claims under the Confrontation
Clause of the Sixth Amendment. (ECF No. 7, at 33–79.)
STANDARD OF REVIEW
Federal district courts have a pre-service duty under Rule 4 of the Rules Governing § 2254
Cases in the United States District Courts, which is applicable to § 2241 petitions pursuant to Rule
1(b), to screen and summarily dismiss a habeas petition prior to any answer or other pleading when
the petition “appears legally insufficient on its face.” McFarland v. Scott, 512 U.S. 849, 856
(1994); see also United States v. Thomas, 221 F.3d 430, 437 (3d Cir. 2000) (explaining that courts
may dismiss petitions where “none of the grounds alleged in the petition would entitle [the
petitioner] to relief”).
Petitioner once again challenges 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
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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 one-year 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
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.
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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.
With those principles in mind, Petitioner raises various sentencing challenges, evidentiary
challenges, and claims under the Confrontation Clause of the Sixth Amendment. (ECF No. 7, at
A. Sentencing Enhancement Claims
1. Alleyne Claim
First, Petitioner contends under Ground One, that the jury’s general verdict along with his
sentence, violated Alleyne v. United States, 570 U.S. 99, 102 (2013). (ECF No. 7, at 39.) Petitioner
argues that the Court held him liable for drug transactions after his arrest, without submitting those
questions of fact to a jury. He argues that those facts “increase[d] the drug amounts and
Petitioner’s sentencing penalties.” (Id.)
In Alleyne, the Supreme Court held that a jury must find beyond a reasonable doubt, any
fact that increases the mandatory minimum sentence for a crime. Id. The Third Circuit, however,
has consistently held that “§ 2255 is not inadequate or ineffective for a prisoner to raise” Alleyne
claims. Sacksith v. Warden Canaan USP, 552 F. App’x 108, 109 (3d Cir. 2014); see also OlivierDiaz v. Warden Fort Dix FCI, 562 F. App’x 65, 66 (3d Cir. 2014). Accordingly, since the
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Dorsainvil exception does not apply here, this Court lacks jurisdiction under § 2241 to entertain
this challenge to Petitioner’s sentence.
2. Rowe Claim
To the extent Petitioner attempts to raise a claim once again under United States v. Rowe,
919 F.3d 752, 756 (3d Cir. 2019), this Court rejects the claim for substantially the same reasons
set forth in Judge McNulty’s earlier Opinion:
The Third Circuit held in Rowe that separate acts of distribution of
controlled substances are distinct offenses, and that the government
cannot aggregate weights from separate transactions to prove an
individual is guilty of possession with intent to distribute 1,000
grams or more of a controlled dangerous substance. Rowe, 919 F.3d
at 760-61. Based upon this ruling, Petitioner argues that he cannot
be guilty of conspiracy to distribute 1,000 grams or more of heroin
because the government did not provide proof that he possessed
1,000 grams or more of heroin on one single occasion.
I take no position on whether the Petitioner is interpreting Rowe
correctly in relation to his conspiracy conviction. Rowe is not
available as a source of relief because it is not an intervening
Supreme Court case which has been made retroactively available on
Under Third Circuit case law, a petitioner must assert “a claim of
actual innocence on the theory that he is being detained for conduct
that has subsequently been rendered non-criminal by an
intervening Supreme Court decision and our own precedent
construing an intervening Supreme Court decision” in order to fall
under the inadequate or ineffective safety valve of § 2241. United
States v. Tyler, 732 F.3d 241, 246 (3d Cir. 2013) (emphasis added).
[. . . .]
Thus, to bring this claim in a § 2241 petition, the intervening change
must go to the criminality of the defendant’s acts, and must come
from the Supreme Court. See Lafond, 774 F. App’x at 719
(affirming District Court’s order dismissing a § 2241 petition
because the petitioner did not argue he was “detained for conduct
that has subsequently been rendered non-criminal by an
intervening Supreme Court decision”) (emphasis added); Bruce,
868 F.3d at 180 (“What matters is that the prisoner has had no earlier
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opportunity to test the legality of his detention since the
intervening Supreme Court decision issued.”) (emphasis added).
Telfair, 2019 WL 5692143, at *4. Consequently, this Court will also dismiss Petitioner’s Rowe
claim for lack of jurisdiction.
Although not necessary to the Court’s disposition, the Court observes that Petitioner’s
Rowe claim appears to lack merit. Petitioner’s case involved a conspiracy charge rather than just
an ordinary possession with intent to distribute charge. In contrast, “Rowe did not involve a
conspiracy charge. Furthermore, ‘[b]ecause the drug quantity for conspiracy is an offense-specific
determination of the quantity involved in the entire conspiracy, those drugs need not be possessed
by any one conspirator at one specific time.’ ” Bailey v. United States, No. 1:17-13586, 2020 WL
7488891, at *4 (D.N.J. Dec. 21, 2020) (quoting Britt v. United States, No. 18-16357, 2020 WL
3249118, at *11 (D.N.J. June 16, 2020)); see also United States v. Perrin, No. 14-205-2, 2019 WL
3997418, at *3 (W.D. Pa. Aug. 23, 2019).
As a result, “Petitioner is mistaken on his underlying premise that adding up the drug
quantities of separate transactions to support . . . [the] conspiracy was improper.” Britt, 2020 WL
3249118, at *11. Accordingly, assuming arguendo that the Court had jurisdiction, the Court would
have denied this claim on the merits.
3. Remaining Sentencing Enhancement Claims
Next, as to Ground Three, Petitioner appears to contend that this Court improperly
enhanced his sentence under the Armed Career Criminal Act (“ACCA”) and as a career offender
under the Sentencing Guidelines. Petitioner vaguely argues that his prior convictions for seconddegree robbery, third-degree criminal possession of a weapon, third-degree hindering
apprehension, and second-degree aggravated assault, do not qualify as crimes of violence under
the ACCA or the Sentencing Guidelines. (ECF No. 7, at 75.)
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In essence, Petitioner appears to argue that he may challenge his sentence under Johnson
v. United States, 135 S. Ct. 2551 (2015), and its progeny,1 which found the residual clause of the
ACCA to be constitutionally void for vagueness. Petitioner’s sentence, however, did not involve
the ACCA. (United States v. Telfair, Crim. No. 08-0757, ECF No. 95.)
As a result, the Court will liberally construe the claim as challenging his career offender
enhancement, under the Sentencing Guidelines, which at the time of sentencing contained a
residual clause defining a “crime of violence” similarly to the one in the ACCA. See United States
v. Green, 898 F.3d 315, 318–19 (3d Cir. 2018) (comparing U.S.S.G. § 4B1.2(a) (2008) with 18
U.S.C.§ 924(e)(2)(B)(ii)). Petitioner asks the Court to resentence him without the career offender
These claims, however, do not fall within the Dorsainvil exception because they argue that
Petitioner is actually innocent of a sentencing enhancement, as opposed to being actually innocent
of the crimes for which he was convicted. See, e.g., Arbelaez-Agudelo v. Zickefoose, 497 F. App’x
179, 182 (3d Cir. 2012) (addressing enhancements under the Sentencing Guidelines); United States
v. Brown, 456 Fed. App’x 79, 81 (3d Cir. 2012); Maher v. Fed. Bureau of Prisons, No. 18-2348,
2018 WL 2095594, at *2 (D.N.J. May 7, 2018) (citing cases); Adderly v. Hollingsworth, No. 141800, 2015 WL 3629398, at *10 (D.N.J. June 9, 2015) (addressing ACCA claims); see also
Franklin v. Ortiz, No. 18-13713, 2020 WL 3638279, at *2 (D.N.J. July 6, 2020).
Nor is § 2255 inadequate or ineffective to address sentencing enhancement claims. Maher,
2018 WL 2095594, at *2 (citing cases); Crawford, 2012 WL 5199167, at *1. Accordingly, the
Court will dismiss Petitioner’s sentencing enhancement claims for lack of jurisdiction.
Petitioner submitted letters asking the Court to consider another of Johnson’s progeny, the
Supreme Court’s recent decision in Borden v. United States, 141 S. Ct. 1817, 1834 (2021). In
Borden, the Court held that “[o]ffenses with a mens rea of recklessness do not qualify as violent
felonies under ACCA.” Id.
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Although not necessary to the Court’s disposition, the Court would have also denied the
claim on the merits. The Supreme Court in Beckles explicitly rejected Petitioner’s argument and
held that Johnson did not create a new right as to the residual clause of the Sentencing Guidelines
in their advisory form (i.e., post-United States v. Booker, 543 U.S. 220 (2005)). See Beckles v.
United States, 137 S. Ct. 886, 890 (2017); McKeller v. United States, No. 16-3585, 2019 WL
4565248, at *3 (D.N.J. Sept. 20, 2019).
The Supreme Court reasoned that “the advisory Guidelines are not subject to vagueness
challenges,” because they do not “fix the permissible sentences for criminal offenses,” and “merely
guide the exercise of a court’s discretion.” Beckles, 137 S. Ct. at 890–92; Green, 898 F.3d at 320.
“The Court explained that the two principles governing the vagueness doctrine—notice and
avoiding arbitrary enforcement—do not apply to the advisory Guidelines.” Green, 898 F.3d at 320
(citing Beckles, 137 S. Ct. at 892). As a result, the Court “determined that the advisory Guidelines
cannot be challenged as constitutionally vague.” Id.
In “light of Beckles, Johnson’s holding as to the residual clause in the ACCA created a
right only as to the ACCA, and not a broader right that applied to all similarly worded residual
clauses, such as that found in the advisory Sentencing Guidelines.” Id. at 321. Accordingly,
because this Court applied the advisory Guidelines in sentencing Petitioner, he cannot use Johnson
or its progeny to challenge his career offender enhancement.
B. Evidentiary and Confrontation Clause Claims
Returning then to Ground Two, Petitioner contends that the evidence against him was
insufficient to demonstrate a conspiracy. Petitioner alleges that after his arrest, undercover agents
used his phone to negotiate future heroin transactions. (ECF No. 7, at 41.) Petitioner appears to
argue that because one cannot conspire with a government agent, Petitioner must be innocent of
the entire conspiracy. (Id.)
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At the outset, it does not appear that the Government relied solely on those conversations
to convict Petitioner of conspiring to distribute and possess with intent to distribute 1,000 grams
or more of heroin. Rather, as the Third Circuit summarized:
The Drug Enforcement Administration (“DEA”) was notified that a
heroin mill had been found at 185 Parker Street. DEA agents
interviewed Filpo and Sanchez, who both identified Telfair as the
owner or controller of the heroin mill. The DEA obtained a warrant
to search 185 Parker Street for drug evidence and for evidence
linking Telfair to the premises. When DEA agents executed the
warrant, they collected the drug evidence from the basement and
seized documentary evidence connecting Telfair to the location.
Shortly after the shooting, the DEA attempted to find Telfair at the
residence of his girlfriend, Catrina Gatling (“Gatling”), but she
denied knowing Telfair. The DEA then obtained an arrest warrant
for Telfair. On January 23, 2007, Telfair was arrested outside
Gatling’s residence. After he was Mirandized, Telfair admitted he
was a heroin dealer, and told the DEA agents that he had been
leaving to meet his heroin supplier, Carlos Alberto Antigua
(“Carlito”), when he was arrested. Carlito repeatedly
called Telfair during the interview.
Carlito testified at trial that he began supplying heroin to Telfair in
late August 2006. At the height of the relationship, Telfair was
purchasing 100 bricks of heroin every three days. This continued for
roughly four months. During this period, Carlito sold between four
and five kilograms of heroin to Telfair.
United States v. Telfair, 507 F. App’x 164, 167–68 (3d Cir. 2012) (footnotes omitted).
In any event, at its core, Petitioner argues that the jury did not have sufficient evidence to
convict him of the conspiracy. Section 2255, however, is not inadequate or ineffective to hear
sufficiency of the evidence claims, and prisoners can raise such claims on direct appeal. E.g.,
Hatches v. Schultz, No. 09-0848, 2009 WL 3152123, at *3 (D.N.J. Sept. 25, 2009); Yepes v. United
States, No. 93-2310, 1993 WL 525578, at *3 (D.N.J. Dec. 15, 1993) (explaining the standard for
reviewing a sufficiency of the evidence claim in a § 2255 proceeding); see also United States v.
Hilts, No. 11-133, 2018 WL 1960948, at *2 (W.D. Pa. Apr. 26, 2018).
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Similarly, as to Ground Four, Petitioner sets forth a number of Confrontation Clause claims
under the Sixth Amendment, but § 2255 is not inadequate or ineffective to raise such claims, and
prisoners can raise such claims on direct appeal. E.g., Brooks v. Warden Allenwood FCI, No. 211158, 2021 WL 2623409, at *1–2 (3d Cir. June 25, 2021); Adams v. United States, 570 F. App’x
126, 128 (3d Cir. 2014); Sellers v. United States, No. 14-388, 2017 WL 434209, at *5 (D.N.J. Jan.
31, 2017). Accordingly, as § 2255 is not inadequate or ineffective to raise these claims, the Court
lacks jurisdiction under § 2241 to address these claims.
C. Jurisdiction under § 2241 and Audita Quarella
For all of the reasons discussed above, the Court finds that the allegations in the Petition,
accepted as true, would not necessarily demonstrate that “some limitation of scope or procedure
would prevent a § 2255 proceeding from affording him a full hearing and adjudication,” or that he
“had no earlier opportunity to challenge his conviction.” Cradle, 290 F.3d at 538; see also Massey
v. U.S., 581 F.3d 172, 174 (3d Cir. 2009); Dorsainvil, 119 F.3d at 251. Accordingly, the Dorsainvil
exception does not apply here, and this Court lacks jurisdiction under § 2241 to entertain these
challenges to Petitioner’s conviction and sentence.
Ordinarily, that would be the end of the matter, but Petitioner appears to contend that this
Court also has jurisdiction to hear his claims as a petition for writ of audita querela. The writ of
audita querela, however, “survives only to the extent that it fills in gaps in the current system of
post-conviction relief.” United States v. Gonzalez–Rivera, 535 F. App’x 95, 96 (3d Cir. 2013) (per
curiam) (citing United States v. Valdez–Pacheco, 237 F.3d 1077, 1079 (9th Cir. 2001)); see also
Garcia v. U.S. Parole Comm’n, No. 12-0356, 2014 WL 1225435, at *3 (D.N.J. Mar. 24, 2014).
As Petitioner’s claims are cognizable under § 2255, he cannot invoke the writ of audita
querela. Gonzalez–Rivera, 535 F. App’x at 96 (citing United States v. Holt, 417 F.3d 1172, 1175
(11th Cir. 2005)); see also Massey, 581 F.3d at 174.
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To the extent Petitioner argues that audita querela is necessary because he personally
cannot use § 2255, the Court rejects that argument. Petitioner “may not seek relief through a
petition for a writ of audita querela on the basis of his inability to satisfy the requirements of the
Antiterrorism and Effective Death Penalty Act of 1996 . . . for filing a second or successive § 2255
motion to vacate sentence.” Massey, 581 F.3d at 174.
Once again, § 2255 “is not inadequate or ineffective merely because the sentencing court
does not grant relief, the one-year statute of limitations has expired, or the petitioner is unable to
meet the stringent gatekeeping requirements of . . . § 2255.” Cradle, 290 F.3d at 539. “It is the
inefficacy of the remedy, not the personal inability to use it, that is determinative.” Id. at 538.
As the Third Circuit has held, “[a] prisoner may not circumvent valid congressional
limitations on collateral attacks by asserting that those very limitations create a gap in the
postconviction remedies that must be filled by the common law writs” such as audita querela.
United States v. Paster, 190 F. App’x 138, 139 (3d Cir. 2006) (quoting Valdez-Pacheco, 237 F.3d
at 1080); see also Massey, 581 F.3d at 174.
Taken together, this Court does not have jurisdiction under § 2241 or audita querela to
hear Petitioner’s claims. 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.
Since Petitioner has already pursued a motion under § 2255, he must seek authorization
from the Third Circuit to file a second or successive § 2255 motion. 28 U.S.C. § 2244(b)(3). This
Court finds that it is not in the interest of justice to transfer this Petition to the Third Circuit, as it
does not appear that Petitioner can satisfy the requirements of § 2244(b)(2). However, this Court’s
decision does not prevent Petitioner from seeking permission from the Third Circuit on his own.
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For the foregoing reasons, the Court will dismiss the Petition for lack of jurisdiction.
Additionally, the Court will dismiss Petitioner’s motion to appoint counsel as moot.
appropriate Order follows.
DATED: September 3, 2021
/s Robert B. Kugler
ROBERT B. KUGLER
United States District Judge
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