THIEME v. KNIGHT

Filing 2

OPINION. Signed by Judge Christine P. O'Hearn on 7/28/2022. (amv,n.m.)

Case 1:22-cv-03439-CPO Document 2 Filed 08/02/22 Page 1 of 9 PageID: 100

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

CHRISTOPHER THIEME,
Civil Action
No. 22-3439 (CPO)

Petitioner,
v.

OPINION
WARDEN STEVIE KNIGHT,
Respondent.
O’HEARN, District Judge.
Petitioner is a federal prisoner currently incarcerated at FCI Fort Dix, in Fort Dix, New
Jersey. He is proceeding pro se with a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C.
§ 2241. For the reasons stated in this Opinion, the Court will dismiss the Petition for lack of
jurisdiction.
I.

BACKGROUND 1

In June of 2016, Petitioner “pleaded guilty to a two-count information, which charged him
with attempted kidnapping and murder-for-hire.” United States v. Thieme, No. 16-294, 2021 WL
1660859, at *2 (D.N.J. Apr. 28, 2021). Given Petitioner’s “concerning record of prior violent
crimes against women, this Court sentenced [him] to” 210 months in prison. Id.; see also (United
States v. Thieme, No. 16-294, ECF No. 17, (D.N.J. 2016) (sentencing Petitioner to 210 months on
Count One and 120 months on Count Two, to run concurrently)). Petitioner did not file a direct
appeal. (ECF No. 1-3, at 6.)

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The Court will construe the factual allegations in the Petition as true for the purpose of this
screening only. The Court has made no findings as to the veracity of Petitioner’s allegations.

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Several years later, in June of 2019, Petitioner filed a motion seeking relief under 28 U.S.C.
§ 2255 or the writ of audita querela. Thieme, 2021 WL 1660859, at *1. “This Court entered an
order finding that Petitioner’s criminal motion could only proceed as a motion to vacate sentence
under 28 U.S.C. § 2255.” Id. Thereafter, Petitioner elected to recharacterize his motion and
proceed under § 2255. Id.
Ultimately, this Court dismissed Petitioner’s § 2255 motion as time-barred, as Petitioner
“delayed two and a half years before seeking to raise his challenges,” and “failed to present any
persuasive argument as to why he could not have raised his claims sooner.” Id. at *4. Additionally,
this Court did not issue a certificate of appealability. Id. at *5. Petitioner filed a request for a
certificate of appealability before the Third Circuit, and that Court denied his request. Thieme v.
United States, No. 20-1839, 2020 WL 6707326, at *1 (3d Cir. July 29, 2020). Thereafter,
Petitioner filed a petition for writ of certiorari, and the Supreme Court denied the petition. Thieme
v. United States, 141 S. Ct. 863 (2020).
In June of 2022, Petitioner filed the instant Petition under 28 U.S.C. § 2241, challenging
the validity of his conviction and sentence. (ECF No. 1, at 6.) Like his § 2255 proceedings,
Petitioner raises various due process, double jeopardy, and void for vagueness claims. (Id.)
II.

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

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petitioner] to relief”). 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).
III.

DISCUSSION

In this case, Petitioner challenges his federal conviction and sentence under 28 U.S.C. §
2241. Generally, however, a person must challenge 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 federal conviction or sentence through § 2241
unless the remedy under § 2255 is “inadequate or ineffective.” See 28 U.S.C. § 2255(e). More
specifically, § 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 utilize § 2241,
“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

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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 had previously 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. The Third Circuit emphasized that it 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.
Consequently, 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 fails to allege facts sufficient to bring his three
claims within the Dorsainvil exception. First, under Grounds One and Two, Petitioner contends
that this Court improperly enhanced his sentence in violation of the Due Process and Double
Jeopardy Clauses of the Fifth Amendment. (ECF No. 1, at 6.) On these claims, Petitioner does not
allege that he is “actually innocent” as a result of a retroactive change in substantive law that
negates the criminality of his conduct. (Id.)
These claims do not meet the first two Dorsainvil prongs because they argue that Petitioner
is actually innocent of a sentencing enhancement as opposed to being actually innocent of the

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crimes for which he was convicted. See, e.g., United States v. Brown, 456 F. App’x 79, 81 (3d Cir.
2012); Selby v. Scism, 453 F. App’x 266, 268 (3d Cir. 2011) (“Selby does not argue that he is
innocent of the offense for which he was convicted; he argues that he is ‘innocent’ of a sentencing
enhancement because of an intervening change in law. Accordingly, the exception described in In
re Dorsainvil does not apply.”); Maher v. Fed. Bureau of Prisons, No. 18-2348, 2018 WL
2095594, at *2 (D.N.J. May 7, 2018) (citing cases).
As to Ground Three, Petitioner contends that he is actually innocent of attempted
kidnapping under 18 U.S.C. § 1201(d) because the statute is unconstitutionally void for vagueness.
(ECF No. 1-3, at 48–60.) The Court will assume arguendo that this claim satisfies the first
Dorsainvil prong, for alleging actual innocence. It does not, however, meet the second prong, as
Petitioner does not allege that a retroactive change in substantive law negated the criminality of
his conduct. Petitioner does not allege, for example, that after his conviction and sentence in 2016,
a court specifically held that 18 U.S.C. § 1201(d) was unconstitutionally void for vagueness. (ECF
No. 1-3, at 48–60.)

Instead, he argues that this Court should now declare § 1201(d)

unconstitutionally void for vagueness. (Id.)
Petitioner, however, could and should have raised his void for vagueness claim on direct
appeal or by motion under 28 U.S.C. § 2255. Similarly, Petitioner could have also raised his
sentencing enhancement claims on direct appeal or by motion under § 2255. As a result, all of
Petitioner’s claims fail to meet the third Dorsainvil prong as Petitioner had an earlier opportunity
to seek judicial review of Grounds One, Two, and Three. See Bruce, 868 F.3d at 180; Dorsainvil,
119 F.3d at 251–52.
In his Petition, Petitioner argues that § 2255 is inadequate or ineffective to address his
claims because this Court has never addressed Petitioner’s post-conviction relief claims “on the

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merits.” (ECF No. 1-3, at 15.) Petitioner, of course, is referring to this Court’s dismissal of his §
2255 motion as time barred. Thieme, 2021 WL 1660859, at *4. Petitioner contends that he would
have brought his claims earlier, but defense counsel ignored and abandoned him. (ECF No. 1-3, at
15.) Petitioner also complains that it is “near impossible” to “find counsel willing to take on [a]
federal post-conviction relief” case without funds. (Id.)
None of these issues, however, truly prevented Petitioner from filing a timely pro se § 2255
motion. Thieme, 2021 WL 1660859, at *4 (“Finally, this Court has considered all of the arguments
presented by Petitioner and finds that he has failed to show any basis for equitable tolling as he
has neither shown that he was diligent nor that he was prevented from earlier raising his claims
due to an extraordinary circumstance.”). Petitioner could have then requested that the Court
appoint counsel on his behalf.
Effectively, Petitioner concedes that he had an earlier opportunity to raise his claims, i.e.,
through a motion under § 2255. 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. Consequently, § 2255 is not inadequate or ineffective merely because
Petitioner’s lack of diligence rendered him personally unable to use § 2255.
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” and sentence. 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.

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Accordingly, as none of Petitioner’s claims satisfy all of the requirements of the Dorsainvil
exception, this Court lacks jurisdiction under § 2241 to entertain these claims.
Ordinarily, that would be the end of this matter, but Petitioner contends that this Court also
has jurisdiction to hear his claims as a petition for writ of audita querela or for writ de homine
replegiando. (ECF No. 1-3, at 61.) First, the writ of audita querela, “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. 120356, 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. 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.”
Massey, 581 F.3d at 174.
With regard to the writ de homine replegiando, an ancient writ defined as:
The writ . . . to replevy a man out of prison, or out of the custody of
any private person, (in the same manner that chattels taken in
distress may be replevied . . .) upon giving security to the sheriff that
the man shall be forthcoming to answer any charge against him.
And, if the person be conveyed out of the sheriff’s jurisdiction, the
sheriff may return that he is eloigned . . . upon which a process issues
. . . to imprison the defendant himself, without bail . . . till he
produces the party. But this writ is guarded with so many
exceptions, that it is not an effectual remedy in numerous instances,
especially where the crown is concerned.

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Pisciotta v. Ortiz, No. 21-15852, 2021 WL 4975063, at *3 (D.N.J. Oct. 26, 2021) (quoting Writ
de homine replegiando, Black’s Law Dictionary (11th ed. 2019)), aff’d sub nom. Pisciotta v.
Warden Fort Dix FCI, No. 21-3114, 2022 WL 604050 (3d Cir. Mar. 1, 2022). “The writ de homine
replegiando ‘is an ineffective writ that has been generally superseded by the writ of habeas
corpus.’” Id. (quoting Garey v. Holder, No. 15-56, 2015 WL 13734630, at *4 (D.S.C. Feb. 13,
2015)).
In any event, 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
and de homine replegiando. 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. For all those reasons, this
Court does not have jurisdiction under § 2241, audita querela, or de homine replegiando, 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 2 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.

2

Additionally, it appears that Petitioner has already applied for permission to file a second or
successive § 2255 motion as to Ground Three, and the Third Circuit denied that application. (In
re: Thieme, No. 21-2268, ECF No. 3, (3d. Cir. 2021).)
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IV.

CONCLUSION

For the foregoing reasons, the Court will dismiss the Petition for lack of jurisdiction. An
appropriate Order follows.

DATED: July 28, 2022
/s/ Christine P. O’Hearn
Christine P. O’Hearn
United States District Judge

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