SHARIF v. UNITED STATES OF AMERICA
Filing
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OPINION. Signed by Judge Jose L. Linares on 3/23/2016. (JB, )
*NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
RAJAHN OMAR SHARIF,
Civil Action No. 16-915 (JLL)
Petitioner,
v.
OPINION
UNITED STATES OF AMERICA,
Respondent.
LINARES, District Judge:
Presently before the Court is Petitioner Rajahn Omar Sharif s motion to vacate his
sentence/petition for a writ of habeas corpus purportedly brought pursuant to 28 U.S.C. §§ 2255( e)
and
challenging his sentence. (ECF No. 1). Pursuant to Rule 4 of the Rules Governing
Section 2254 Cases, applicable to § 2241 through Rule 1(b), and Rule 5 of the Rules Governing
Section 2255 Proceedings this Court is required to screen the petition and determine whether it
"plainly appears from the petition and any attached exhibits that the petitioner is not entitled to
relief." For the reasons set forth below, this Court will dismiss the petition for lack ofjurisdiction.
I. BACKGROUND
Petitioner, Rajahn Omar Sharif (previously known as Leroy Smith) pled guilty to Hobbs
Act Robbery in violation of 18 U.S.C. § 1951 and use or carrying a firearm during the commission
of a crime of violence in violation of 18 U.S.C. § 924(c) in September 1999. (See Docket No. 99525 at ECF No. 4). On December 17, 1999, Petitioner was sentenced to 210 months on the Hobbs
Act charge, and an additional 60 months on the use of a firearm charge to run consecutively to the
Hobbs Act sentence. (Docket No. 99-525 at ECF No. 11-12). Petitioner appealed his sentence,
and the Third Circuit affirmed in a non-precedential opinion on January 30, 2001. United States
v. Smith, 254 F.3d 1079 (2001) (table decision). It is not clear from the current record whether
Petitioner filed a petition for certiorari on direct appeal.
On January 29, 2002, Petitioner filed a motion to vacate his sentence pursuant to 28 U.S.C.
§ 2255 asserting various claims, including ineffective assistance of counsel claims. (Docket No.
02-408 at ECF No. 1). Judge Pisano denied Petitioner's § 2255 motion and denied Petitioner a
certificate of appealability on July 24, 2003. (Docket No. 02-408 at ECF Nos. 10-11 ). Petitioner
appealed the denial of his§ 2255 motion, and the Third Circuit affirmed the denial in June 2004.
(Docket No. 02-408 at ECF No. 15). Petitioner does not appear to have filed a petition for
certiorari on his initial § 2255 motion.
On or about March 17, 2008, Petitioner filed a petition for a writ of habeas corpus, allegedly
brought pursuant to 28 U.S.C. § 2241 in which he alleged that he was actually innocent of the
career offender status applied to him at sentencing which is similar to the claim he raises in his
current petition. (Docket No. 08-1350 at ECF No. 1). In May 2008, Judge Kugler dismissed
Petitioner's petition finding that it was, in fact, a second or successive§ 2255 motion and that this
Court therefore lacked jurisdiction over it. (Docket No. 08-1350 at ECF Nos. 2-3).
In that
opinion, Judge Kugler explained in detail to Petitioner the nature of§ 2255(e)'s safety valve
provision, and the rare circumstances in which a convicted prisoner will be permitted to bring a §
2241 petition in place of a§ 2255 motion. See Sharifv. Schultz, No. 08-1350, 2008 WL 2025208,
at *2-4 (D.N.J. May 7, 2008). Petitioner appealed, and the Third Circuit affirmed the dismissal
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of Petitioner's alleged§ 2241 petition in October 2008. (Docket No. 08-1350 at ECF No. 5).
On February 18, 2016, Petitioner filed his current motion to vacate his sentence/habeas
petition. (ECF No. 1). Although Petitioner titles this document a motion to vacate his sentence
under § 2255(e), he essentially seeks to use § 2255(e)'s safety valve clause to bring a habeas
petition pursuant to 28 U.S.C. § 2241. In his petition, Petitioner asserts that he is "actually
innocent" of the career offender enhancement because several of his prior drug convictions
allegedly do not qualify for the purposes of the Guidelines. (Id. at 3-6). Petitioner therefore
asserts that he should be permitted to evade the gatekeeping requirements of§ 2255 and be
permitted to proceed with his current petition without first acquiring certification by the Court of
Appeals. (Id. at 6).
II. DISCUSSION
B. Legal Standard
Under 28 U.S.C. § 224l(c), habeas relief may be extended to a prisoner only when he "is
in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. §
2241 (c)(3 ). A federal court has jurisdiction over such a petition if the petitioner is "in custody"
and the custody is allegedly "in violation of the Constitution or laws or treaties of the United
States." 28 U.S.C. § 2241(c)(3); Malengv. Cook, 490 U.S. 488, 490 (1989). Pursuant to Rule 4
of the Rules Governing Section 2254 Cases, applicable to Section 2241 petitions through Rule
I (b ), and Rule 5 of the Rules Governing Section 2255 Proceedings this Court is required to
preliminarily review Petitioner's habeas petition/motion and determine whether it "plainly appears
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from the petition and any attached exhibits that the petitioner is not entitled to relief." Pursuant
to this rule, a district court is "authorized to dismiss summarily any habeas petition that appears
legally insufficient on its face." McFarland v. Scott, 512 U.S. 849, 856 (1994).
B. Analysis
Petitioner seeks to use§ 2255(e)'s safety valve clause to evade the gatekeeping
requirements of§ 2255 and bring this petition without first acquiring certification from the Court
of Appeals, and thus in essence seeks to bring this petition pursuant to 28 U.S.C. § 2241.
Normally, a federal prisoner must bring his challenges to the validity of his sentence through 28
U.S.C. § 2255. See Okereke v. United States, 307 F.3d 117, 120 (3d Cir. 2002) (a motion filed
pursuant to § 2255 is the presumptive means for challenging a federal conviction); see also
Jordan
United States, 615 F. App'x 764, 765 (3d Cir. 2015). Indeed,§ 2255 expressly
prevents this Court from considering Petitioner's petition under§ 2241 unless the remedy
available under§ 2255 is "inadequate or ineffective" to test the legality of Petitioner's sentence.
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§ 2255(t); see also Concepcion v. Zickefoose, 442 F. App'x 622, 623 (3d Cir. 2011);
Cradle
US. ex rel. Miner, 290 F.3d 536, 538 (3d Cir. 2002). The § 2255 remedy is only
inadequate "where the petitioner demonstrates that some limitation of scope or procedure would
prevent the petitioner from receiving adequate adjudication of his or her claims under§ 2255.
This exception is extremely narrow and applies only in rare circumstances." Concepcion, 442
F. App'x at 623 (internal quotations omitted); see also Cradle, 290 F. 3d at 538; Okereke, 307
F.3d at 120-21 (finding exception does not apply where a petitioner claims that his sentence,
which was originally proper, now violates Apprendi v. New Jersey, 530 U.S. 466 (2000));
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Dorsainvil, 119 F.3d at 251-52 (applying the exception where an intervening change in law
rendered the petitioner's conduct non-criminal and the petitioner had not received a previous
opportunity to pursue that claim). The Section 2255 remedy is not inadequate or ineffective
"merely because the sentencing court does not grant relief, the one-year statute oflimitations has
expired or the petitioner is unable to meet the stringent gatekeeping requirements of ... § 2255."
Cradle, 290 F.3d at 539; see also Okereke, 307 F.3d at 120 (quoting Dorsainvil, 119 F.3d at
25
"It is the inefficacy of the remedy, not the personal inability to use it, that is
determinative." Cradle, 290 F.3d at 538. Section 2255(e)'s safety-valve clause "exists to
ensure that petitioners have a fair opportunity to seek collateral relief, not to enable them to
evade procedural requirements." Cradle, 290 F.3d at 539. That exception only applies where a
petitioner "had no earlier opportunity to challenge his conviction for a crime that an intervening
change
substantive law may negate" and dismissal of the petitioner's habeas petition would
therefore work a miscarriage of justice. Dorsaivil, 119 F .3d at 251.
As in Petitioner's previous§ 2241 petition, Petitioner here attempts to raise a claim that
he is "actually innocent" of being a career offender. Although Petitioner mentions the recent
Supreme Court case Johnson v. United States, --- U.S.---, 135 S. Ct. 2551 (2015), Petitioner's
claim actually instead relies upon the Third Circuit's opinion in United States v. Hernandez, 218
F.3d
278 (3d Cir. 2000) (noting that simple possession is not a controlled substance offense
sufficient to support career offender status). This note in Hernandez, however, cites to United
States
Williams, 176 F.3d 714, 717 n. 3 (3d Cir. 1999) for the same proposition. The
proposition on which Petitioner relies in his current petition was therefore clearly the state of the
law as of May 1999 when Williams was published, and certainly by June 2000 when Hernandez
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was published. Thus, Petitioner does not rely on any change in substantive law, but instead
relies entirely on the law as it stood not only on direct appeal, but also at the time when
Petitioner brought his first motion to vacate his sentence in 2002.
Petitioner clearly had the opportunity to raise his claim in his first § 2255 motion and on
direct appeal, and his current claim therefore does not fit the Dorsainvil exception. Petitioner's
current claim, to the extent it has merit, could have been raised at least in Petitioner's § 2255
motion, and the remedy available under § 2255 would clearly have been adequate to address the
alleged issue Petitioner now raises had he properly raised his claim therein and the facts proved
his claims. Petitioner has presented no evidence that there is "some limitation of scope or
procedure" under § 2255 other than the gatekeeping requirements he cannot meet that would
have prevented Petitioner from receiving an adjudication of his claims under § 2255, and the
remedy under§ 2255 is therefore clearly not inadequate here. Concepcion, 442 F. App'x at
623; Cradle, 290 F.3d at 538. As such, the safety-valve of§ 2255(e) does not apply to
Petitioner's current claim, and his current petition actually represents a second or successive §
2255 motion brought without prior certification by the Court of Appeals. See Sharif, 2008 WL
2025208 at *4.
petitioner is required to acquire certification from the Court of Appeals before he can
bring a second or successive§ 2255 motion in the District Court. See 28 U.S.C. § 2255(h).
Where a petitioner files such a motion without first obtaining the appropriate certification, this
Court lacks jurisdiction to hear the motion. See United States v. Hawkins, 614 F. App'x 580,
582 (3d Cir. 2015); see also Robison v. Johnson, 313 F.3d 128, 139 (3d Cir. 2002).
This Court
must therefore either dismiss the petition for lack of jurisdiction or transfer the action to the
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Court of Appeals. Hawkins, 614 F. App'x at 582. This Court can only transfer this action to
the Third Circuit where it is "in the interests of justice [to] transfer" the case. 28 U.S.C. § 1631.
Sections 2255(h) and 2244 permit the certification of a second or successive motion only where
the claim is based on newly discovered evidence that, if proven, would be "sufficient to establish
by clear and convincing evidence that no reasonable factfinder would have found the movant
guilty of the offense" or is based on "a new rule of constitutional rule, made retroactive to cases
on collateral review ... that was previously unavailable." Petitioner's claim here is based
neither on new evidence, nor on a new rule of constitutional law that was previously unavailable.
As Petitioner's claim does not "prima facie satisfy the§§ 2244 and 2255(h) standard," "there [is]
no reason for the District Court to transfer" Petitioner's motion to the Court of Appeals.
Hawkins, 614 F. App'x at 582. As such, it would not be in the interests of justice for this Court
to transfer Petitioner's current petition to the Court of Appeals, and this Court must dismiss this
motion for lack of jurisdiction at this time. 1
Ill. CONCLUSION
For the reasons stated above, Petitioner's petition for a writ of habeas corpus (ECF No. 1)
will be dismissed for lack of jurisdiction. An appropriate order follows.
1
That the Third Circuit affirmed Judge Kugler's dismissal of Petitioner's similar claims in his
previous attempt at bringing a § 2241 petition further supports this conclusion.
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