FAULKNER v. ORTIZ

Filing 3

OPINION. Signed by Judge Robert B. Kugler on 1/6/2022. (tf, n.m.)

Case 1:21-cv-17192-RBK Document 3 Filed 01/07/22 Page 1 of 6 PageID: 24

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
___________________________________
ALEXANDER FAULKNER,
:
:
Petitioner,
:
Civ. No. 21-17192 (RBK)
:
v.
:
:
DAVID E. ORTIZ,
:
OPINION
:
Respondent.
:
____________________________________:
ROBERT B. KUGLER, U.S.D.J.
I.

INTRODUCTION
Petitioner is a federal prisoner proceeding pro se with a petition for writ of habeas corpus

pursuant to 28 U.S.C. § 2241. (See Dkt. No. 1). Petitioner asserts that the United States District
Court for the District of Minnesota improperly enhanced his federal criminal sentence under the
Armed Career Criminal Act (“ACCA”). Petitioner has also filed a motion to amend to add case
authority for his habeas petition. (See Dkt. No. 2). That motion will be granted. However, the
habeas petition will be summarily dismissed.
II.

FACTUAL AND PROCEDURAL BACKGROUND
In 2015, a jury in the District of Minnesota found Petitioner guilty on one count of being

a felon in possession of a firearm and one count of being a felon in possession of ammunition.
(See D. Minn. Crim. No. 14-5, Dkt. No. 136 at 1). Petitioner received a sentence of 280 months
imprisonment. (See id. at 2). Petitioner’s appeal to the United States Court of Appeals for the
Eighth Circuit included a claim that his sentenced was improperly enhanced under ACCA
because two of his previous drug convictions used as predicates for the ACCA enhancement
should have only counted as one conviction. See United States v. Faulkner, 826 F.3d 1139, 1147-

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48 (8th Cir. 2016). However, the Eighth Circuit found no error on this claim (as well as on
Petitioner’s other claims) and affirmed the judgment of conviction. See id. at 1148-49. The
United States Supreme Court denied Petitioner’s petition for writ of certiorari. See Faulkner v.
United States, 137 S. Ct. 2092 (2017).
Thereafter, in June 2017, Petitioner, through counsel, filed a motion to vacate, set aside
or correct his sentence pursuant to 28 U.S.C. § 2255. (See D. Minn. Crim. No. 14-5, Dkt. Nos.
165-66). In that § 2255 motion, Petitioner argued his enhanced sentence under the ACCA was
unconstitutional as a former Indiana burglary conviction no longer constituted a valid predicate
to sustain the ACCA sentencing enhancement. (See D. Minn. Crim. No. 14-5, Dkt. No. 166). The
District of Minnesota denied Petitioner’s § 2255 motion on the merits, but granted a certificate of
appealability. See United States v. Faulkner, Crim. No. 14-5, 2018 WL 1384126 *3-4 (D. Minn.
Mar. 19, 2018). Thereafter, in June, 2019, the Eighth Circuit affirmed the denial of Petitioner’s §
2255 motion. See Faulkner v. United States, 926 F.3d 475 (8th Cir. 2019). The United States
Supreme Court then denied Petitioner’s petition for writ of certiorari. See Faulkner v. United
States, 140 S. Ct. 982 (2020).
In September, 2021, Petitioner filed his federal habeas petition in this Court. Like the
argument Petitioner made on direct appeal, Petitioner claims his sentence is unconstitutional
because two of his previous drug convictions that were used as predicates under ACCA to
enhance his sentence should only count as one, thereby negating the applicability of the ACCA
sentencing enhancement to the District of Minnesota criminal conviction.
III.

STANDARD FOR SUA SPONTE SCREENING OF HABEAS PETITION
With respect to screening the instant habeas petition, 28 U.S.C. § 2243 provides in

relevant part:

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A court, justice or judge entertaining an application for a 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 thereto.
As petitioner is proceeding pro se, his petition is held to less stringent standards than those
pleadings drafted by lawyers. See Rainey v. Varner, 603 F.3d 189, 198 (3d Cir. 2010) (“It is the
policy of the courts to give a liberal construction to pro se habeas petitions.”) (internal quotation
marks and citation omitted); United States v. Otero, 502 F.3d 331, 334 (3d Cir. 2007) (“[W]e
construe pro se pleadings liberally.”) (citing Haines v. Kerner, 404 U.S. 519, 520, 92 S. Ct. 594,
30 L. Ed. 2d 652 (1972)). Nevertheless, “a district court is authorized to dismiss a [habeas]
petition summarily when it plainly appears from the face of the petition and any exhibits annexed
to it that the petitioner is not entitled to relief in the district court[.]” Lonchar v. Thomas, 517
U.S. 314, 320 (1996).
IV.

DISCUSSION
Petitioner seeks review of the criminal judgment and sentence entered by the District of

Minnesota in this § 2241 habeas action. A challenge to the validity of a federal conviction or
sentence usually must be brought under 28 U.S.C. § 2255. See Jackman v. Shartle, 535 F. App'x
87, 88 (3d Cir. 2013) (citing Okereke v. United States, 307 F.3d 117, 120 (3d Cir. 2002)). This is
generally 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:
[a]n 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

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appears that the remedy by the motion is inadequate or ineffective
to test the legality of his detention.
28 U.S.C. § 2255(e). 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)
(citations omitted). However, “[s]ection 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 (citations omitted). “It is the inefficacy of the remedy, not the personal inability to
use it, that is determinative.” Id. at 538 (citation omitted). “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 provided by § 2255 is “inadequate
or ineffective,” permitting resort to § 2241, 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. The “safety valve,” as stated in Dorsainvil, is a narrow one and has been held to
apply in situations where the prisoner has had no prior opportunity to challenge his conviction
for a crime later deemed to be non-criminal by an intervening change in the law. See Okereke,

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307 F.3d at 120 (citing Dorsainvil, 119 F.3d at 251); see also Bruce v. Warden Lewisburg USP,
868 F.3d 170, 180 (3d Cir. 2017).
Petitioner does not allege facts to bring him within the Dorsainvil exception. He does not
allege that he had no earlier opportunity to challenge his conviction for a crime that an
intervening change in substantive law may negate. Instead, his claims center on the purported
impropriety of his sentence, not the crimes for which he was convicted. Therefore, § 2241 is not
the proper avenue for Petitioner to pursue his claim raised here. See Davis v. Warden Allenwood
FCI, 818 F. App’x 147, 149 (3d Cir. 2020) (citing Gardner v. Warden Lewisburg, 845 F.3d 99,
103 (3d Cir. 2017)) (noting the Dorsainvil exception has never applied to issues regarding
sentencing); Scott v. Shartle, 574 F. App'x 152, 155 (3d Cir. 2014) (“[B]ecause [petitioner] is
challenging his career offender designation and is not claiming that he is now innocent of the
predicate offense, he does not fall within the ‘safety valve’ exception created in In re Dorsainvil
and cannot proceed under § 2241.”) (citation omitted); McIntosh v. Shartle, 526 F. App'x 150,
152 (3d Cir. 2013) (“Here, McIntosh is challenging his designation as a career offender. Thus, he
does not fall within the exception created in Dorsainvil and may not proceed under § 2241.”)
(citation omitted); Johnson v. Scism, 454 F. App'x 87, 88 (3d Cir. 2012) (same); United States v.
Brown, 456 F. App'x 79, 81 (3d Cir. 2012) (“We have held that § 2255's ‘safety valve’ applies
only in rare circumstances, such as when an intervening change in the statute under which the
petitioner was convicted renders the petitioner's conduct non-criminal. Brown has not satisfied
that standard here, as he makes no allegation that he is actually innocent of the crime for which
he was convicted, but instead asserts only that he is ‘innocent’ of being a career offender.”)
(internal citation omitted).

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Whenever a civil action is filed in a court that lacks jurisdiction, “the court shall, if it is in
the interests 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. In this case, this Court will
not transfer this action to the Eighth Circuit for its consideration as a request to file a second or
successive § 2255 motion.1
V.

CONCLUSION
For the foregoing reasons, Petitioner’s motion amend with case authority is granted but

the habeas petition is summarily dismissed. An appropriate order will be entered.

DATED: January 6, 2022

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

1

Nothing in this opinion should be construed by Petitioner as preventing him from filing a
request to file a second or successive § 2255 motion in the Eighth Circuit for that Court’s
consideration should he elect to do so.
6