Dolbin v. Warden of Allenwood Low

Filing 10

MEMORANDUM (Order to follow as separate docket entry).Signed by Honorable Malachy E Mannion on 10/17/16. (Attachments: # 1 Unpublished Opinion(s))(bs)

2015 WL 539840
Only the Westlaw citation is currently available.
United States District Court,
M.D. Pennsylvania.

ORDER
AND NOW, this 10th day of February, 2015, IT IS HEREBY
ORDERED THAT:

David GARNER, Petitioner
v.
WARDEN, FCI SCHUYLKILL, Respondent.
Civil No. 1:15–cv–0130.
|
Signed Feb. 10, 2015.
Attorneys and Law Firms
David Garner, Minersville, PA, pro se.

MEMORANDUM

1) The court adopts the report and recommendation of the
magistrate judge (Doc. 4) as to the recommendation that this
action be transferred to the United States District Court for
the Northern District of Ohio.

2) The Clerk of Court shall transfer this action to the United
States District Court for the Northern District of Ohio
pursuant to 28 U.S.C. § 1404 and close the file in this district.

REPORT AND RECOMMENDATION

MARTIN C. CARLSON, United States Magistrate Judge.
SYLVIA H. RAMBO, District Judge.
*1 Before the court is a report and recommendation of the
magistrate judge to whom this matter was referred in which he
recommends that David Garner's petition for writ of habeas
corpus filed pursuant to 28 U.S.C. § 2241 be dismissed or
transferred. Garner has filed objections to the report and
recommendation.

The petition raises a claim challenging Garner's sentence.
Garner claims his sentence was enhanced based upon a prior
conviction. The magistrate judge recommended dismissal of
the petition for two reasons: (1) that the proper petition to
address the sentencing issue was by a motion pursuant to 28
U.S.C. § 2255; or (2) that the petition be transferred to the
original sentencing court (i.e. the Northern District of Ohio)
pursuant to 28 U.S.C. § 1404.

Garner only objects to the recommendation that the petition
be dismissed without prejudice. He does not address the
recommendation regarding a transfer of the petition to the
proper venue.

Because the prerequisites for a transfer to the Northern
District of Ohio have been satisfied under 28 U.S.C. § 1404,1
the court will adopt that recommendation. An appropriate
order will be issued.

I. Statement of Facts and of the Case
In this case, David Garner, a federal prisoner, has filed a
petition for a writ of habeas corpus pursuant to 28 U.S.C. §
2241. McCarthy is a previously convicted drug trafficker who
is currently serving a sentence of 240 months imprisonment
imposed in 2005 by the United States District Court for the
Northern District of Ohio. According to Garner that sentence
was a function of a statutory enhancement imposed upon him
pursuant to 21 U.S.C. § 851 as a result of a prior state drug
conviction. Garner has now filed the instant habeas corpus
petition pursuant to 28 U.S.C. § 2241 challenging this
conviction and sentence. In support of this petition Garner
alleges that he is actually innocent of this crime. However,
scrutiny of this actual innocence claim reveals that Garner is
not asserting factual innocence in this case. (Id.) Rather,
Garner's federal habeas corpus petition simply raises a claim
that he was not properly subjected to this sentencing
enhancement. In short, Garner asserts that he is actually
innocent of the sentencing enhancement, but does not raise a
colorable claim of actual innocence for the underlying crime
of conviction. On the basis of this assertion, Garner seeks to
use the general habeas corpus statute, 28 U.S.C. § 2241, to
challenge his conviction and sentence and bypass 28 U.S.C.
§ 2255, the statute generally applicable to post-conviction
petitions of this type.1

*2 We recommend that the district court decline this

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invitation to allow Garner to re-litigate this claim here, rather
than in the district of his conviction. Our screening review of
this case leaves us convinced that this matter is not
appropriately brought as a habeas petition under 28 U.S.C. §
2241, but rather should be addressed in the Northern District
of Ohio as a petition under 28 U.S.C. § 2255, or in the United
States Court of Appeals for the Sixth Circuit as a second and
successive petition under § 2255. Therefore, we recommend
that this petition either be dismissed without prejudice or be
transferred to the Northern District of Ohio for consideration
as a motion to correct sentence under 28 U.S.C. § 2255.

II. Discussion
A. This Petition Should Be Dismissed or Transferred to the
Sentencing Court
In this case, we find that the petitioner has not made out a
valid case for pursuing habeas relief in this district in lieu of
a motion to correct sentence filed in the district of conviction
under 28 U.S.C. § 2255. This showing is a prerequisite for a
successful habeas petition in this particular factual context.
Therefore, since the petitioner has not made a showing
justifying habeas relief at this time, this petition is subject to
summary dismissal pursuant to Rule 4 of the Rules Governing
Section 2254 Cases in the United States District Courts. 28
U.S.C. § 2254 (Rule 4 applies to § 2241 petitions under Rule
1(b) of the Rules Governing Section 2254 Cases in the United
States District Courts). See, e.g., Patton v. Fenton, 491
F.Supp. 156, 158–59 (M.D.Pa.1979) (explaining that Rule 4
is “applicable to Section 2241 petitions through Rule 1(b)”).

Rule 4 provides in pertinent part: “If it plainly appears from
the petition and any attached exhibits that the petitioner is not
entitled to relief in the district court, the judge must dismiss
the petition and direct the clerk to notify the petitioner.” Rule
4 of the Rules Governing Section 2254 Cases in the United
States District Courts. Summary dismissal of this habeas
petition, which seeks to correct a federal prisoner's sentence,
is appropriate here since it is well-settled that: “[T]he usual
avenue for federal prisoners seeking to challenge the legality
of their confinement,” including a challenge to the validity of
a sentence, is by way of a motion filed under 28 U.S.C. §
2255. In re Dorsainvil, 119 F.3d 245, 249 (3d Cir.1997). See
also United States v. Miller, 197 F.3d 644, 648 n. 2 (3d
Cir.1999) (stating that § 2255 provides federal prisoners a
means by which to bring collateral attacks challenging the
validity of their judgment and sentence); Snead v. Warden,
F.C .I. Allenwood, 110 F.Supp.2d 350, 352 (M.D.Pa.2000)
(finding that challenges to a federal sentence should be
brought in a motion filed under 28 U.S.C. § 2255). Indeed, it
is now clearly established that Section 2255 specifically
provides the remedy to federally-sentenced prisoners that is
the equivalent to the relief historically available under the
habeas writ. See Hill v. United States, 368 U.S. 424, 427, 82

S.Ct. 468, 7 L.Ed.2d 417 (1962) (stating, “it conclusively
appears from the historic context in which § 2255 was
enacted that the legislation was intended simply to provide in
the sentencing court a remedy exactly commensurate with that
which had previously been available by habeas corpus in the
court of the district where the prisoner was confined”).

*3 Therefore, as a general rule, a § 2255 motion “supersedes
habeas corpus and provides the exclusive remedy” to one in
custody pursuant to a federal court conviction. Strollo v.
Alldredge, 463 F.2d 1194, 1195 (3d Cir.1972). Indeed it is
clear that “Section 2241 ‘is not an additional, alternative or
supplemental remedy to 28 U.S.C. § 2255.’ ” Gomez v.
Miner, No. 3:CV–06–1552, 2006 WL 2471586, at *1
(M.D.Pa. Aug.24, 2006) (quoting Myers v. Booker, 232 F.3d
902 (10th Cir.2000)) Instead, Section 2255 motions are now
the exclusive means by which a federal prisoner can challenge
a conviction or sentence that allegedly is in violation of the
Constitution or federal laws or that is otherwise subject to
collateral attack. See Davis v. United States, 417 U.S. 333,
343, 94 S.Ct. 2298, 41 L.Ed.2d 109 (1974). Thus, federal
inmates who wish to challenge the lawfulness of their
sentences must typically file motions with the sentencing
court under § 2255.

This general rule admits of only one, narrowly-tailored,
exception, albeit an exception that has no application here. A
defendant is permitted to pursue relief under 28 U.S.C. §
2241 only where he shows that the remedy under § 2255
would be “inadequate or ineffective to test the legality of his
detention.” 28 U.S.C. § 2255(e); see also United States v.
Brooks, 230 F.3d 643, 647 (3d Cir.2000) (recognizing
availability of § 2241 in cases where petitioners have no other
means of having claims heard). The inadequacy or
ineffectiveness must be “a limitation of scope or procedure ...
prevent[ing] a § 2255 proceeding from affording ... a full
hearing and adjudication of [a] wrongful detention claim.”
Okereke v. United States, 307 F.3d 120 (3d Cir.2002) (citing
Cradle v. United States, 290 F.3d 536, 538 (3d Cir.2002) (per
curiam)). “It is the inefficacy of the remedy, not the personal
inability to use it, that is determinative.” Cradle, 290 F.3d at
538–39 (citing Garris v. Lindsay, 794 F.2d 722, 727
(D.C.Cir.1986)). Accordingly, “[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 the amended § 2255.” Cradle,
290 F.3d at 539. Furthermore, if a petitioner improperly
challenges a federal conviction or sentence under § 2241, the
petition must be dismissed for lack of jurisdiction.
Application of Galante, 437 F.2d 1164, 1165 (3d Cir.1971).

In this case, the representations that the petitioner makes in

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his petition simply do not demonstrate that he is entitled to
resort to seeking habeas relief under 28 U.S.C. § 2241 on the
grounds that a motion under 28 U.S.C. § 2255 would be
ineffective or inadequate. None of the petitioner's claims fall
within the narrow exception outlined in Dorsainvil, in which
§ 2241 relief could be available in lieu of a motion under 28
U.S.C. § 2255. In Dorsainvil, the Third Circuit held that §
2241 relief was available only in very narrow instances to a
petitioner who had no earlier opportunity to challenge his
conviction for conduct that an intervening change in
substantive law made no longer criminal. Dorsainvil, 119
F.3d at 251. Thus, to pursue a claim under § 2241 one must,
in essence, present an assertion of actual innocence due to an
intervening change in the law.

*4 In this regard: “[i]t is important to note in this regard that
‘actual innocence’ means factual innocence, not mere legal
insufficiency. See Sawyer v. Whitley, 505 U.S. 333, 339, 112
S.Ct. 2514, 120 L.Ed.2d 269 (1992).” Bousley v. United
States, 523 U.S. 614, 623–24, 118 S.Ct. 1604, 140 L.Ed.2d
828(1998). “To establish actual innocence, petitioner must
demonstrate that, “ ‘in light of all the evidence,’ “ ‘it is more
likely than not that no reasonable juror would have convicted
him.’ Schlup v. Delo, 513 U.S. 298, 327–328, 115 S.Ct. 851,
130 L.Ed.2d 808 (1995) (quoting Friendly, Is Innocence
Irrelevant? Collateral Attack on Criminal Judgments, 38 U.
Chi. L.Rev. 142, 160 (1970)).” Bousley v. United States, 523
U.S. 614, 623, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998).
Applying this principle to claims made under Dorsainvil:
[T]his Court would have jurisdiction over
Petitioner's petition if, and only if, Petitioner
demonstrates: (1) his “actual innocence,” (2)
as a result of a retroactive change in
substantive law that negates the criminality of
his conduct, (3) for which he had no other
opportunity to seek judicial review. See
Dorsainvil, 119 F.3d at 251–52; Cradle v.
U.S. ex rel. Miner, 290 F.3d 536, 539 (3d
Cir.2002); Okereke v. United States, 307 F.3d
117, 120 (3d Cir.2002). A claim of “actual
innocence” relates to innocence in fact, not
innocence based on a legal, procedural defect.
A litigant must present evidence of innocence
so compelling that it undermines the court's
confidence in the trial's outcome of
conviction; thus, permitting him to argue the
merits of his claim. A claim of actual
innocence requires a petitioner to show: (a)
new reliable evidence not available for
presentation at the time of the challenged trial;
and (b) that it is more likely than not that no
reasonable juror would have convicted the
petitioner in the light of the new evidence. See
House v. Bell, 547 U.S. 518, 126 S.Ct. 2064,

165 L.Ed.2d 1 (2006); Schlup v. Delo, 513
U.S. 298, 324, 327, 115 S.Ct. 851, 130
L.Ed.2d 808 (1995). Furthermore, the
Supreme Court, in House, emphasized that the
gateway standard for habeas review in claims
asserting actual innocence is extremely
demanding and permits review only in the
“extraordinary” case. See House, 547 U.S. at
536–37 (citing Schlup, 513 U.S. at 327).
White v. Zickefoose, CIV 10–0548(RMB), 2010 WL
1050171 (D.N.J. Mar. 19, 2010).

On its face, Garner's petition simply does not
demonstrate that this narrow exception has any
legitimate application to the instant proceedings.
Garner has not, and indeed cannot, argue that drug
trafficking is a matter which an intervening change
in substantive law has made no longer criminal.
Dorsainvil, 119 F.3d at 251. Quite the contrary, this
conduct—distribution of illegal controlled
substances-remains as illegal today as it was when
Garner was convicted in 2005. Furthermore,
Garner's petition does not raise a claim of actual,
factual innocence. Rather, it simply posits a claim of
“innocence based on a legal, procedural defect,”
White v. Zickefoose, CIV 10–0548(RMB), 2010 WL
1050171 (D.N.J. Mar. 19, 2010), concerning the
application of a sentencing enhancement. However,
“ ‘actual innocence’ means factual innocence, not
mere legal insufficiency. See Sawyer v. Whitley, 505
U.S. 333, 339, 112 S.Ct. 2514, 120 L.Ed.2d 269
(1992).” Bousley v. United States, 523 U.S. 614,
623–24, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998).

*5 Nor can Garner secure relief under § 2241, after
having been denied relief under § 2255, by asserting
that, while guilty of drug trafficking, he is “actually
innocent” of the drug trafficking criminal recidivist
enhancement that was considered by the court as an
aggravating factor at his sentencing. Such arguments,
while frequently made by federal inmates, are rarely
embraced by the courts. Indeed, courts, including
this Court, have repeatedly rebuffed efforts by
prisoners to use § 2241 to by-pass the requirements
of § 2255 based upon claims of “actual innocence”
which relate solely to the application of some
sentencing enhancement. See, e.g., Montes v. Holt,
179 F.App'x 824 (3d Cir.2006); Sines v. Wilner, No.
09–1240, 2009 WL 2365406 (D.Colo. July 31,
2009); Kennedy v. Miner, No. 06–314, 2006 WL
2645148 (M.D.Pa. Sept.14, 2006). Therefore, these
representations are simply insufficient to persuade

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the Court that 28 U.S.C. § 2255 is either ineffective
or inadequate to enable Garner to test the legality of
this aspect of his sentence. Indeed, claims of this
type have been raised, and rejected, by this Court in
the past, with the Court holding that:
“Suffice to say that, based on recent Middle District
cases directly on point, we find Petitioner's present
habeas claim must be raised via a 2255 motion. See
Wallace, supra; Brown, supra; Blum v. Holt, 2010
WL 2926596 (M.D.Pa.5–7–10) (Court held that it
lacked jurisdiction over inmate's § 2241 habeas
claim that the federal sentencing court incorrectly
determined that he was a career criminal for
purposes of sentencing based on a prior state court
conviction.); DiFilippo v. Sniezek, Civil No.
10–0406, M.D. Pa., aff'd. 2010 WL 3965893 (3d
Cir.10–12–10) (Court found that § 2255 Motion was
remedy for petitioner who claimed that he should not
have been sentenced as a career offender and that his
guideline range should not have been increased,
since the Supreme Court recently found that escape
was not always a crime of violence for purposes of
sentencing a defendant as a career offender).”
Moore–Bey v. Ebbert, No. 1:CV–12–1656, 2012
WL 5207463, at *3 (M.D.Pa. Sept.10, 2012) report
and recommendation adopted, No. 1:12–CV–1656,
2012 WL 5199430 (M.D.Pa. Oct.22, 2012).

Since “[i]t is the inefficacy of the remedy, not the
personal inability to use it, that is determinative,”
Cradle, 290 F.3d at 538–39 (citing Garris v.
Lindsay, 794 F.2d 722, 727 (D.C.Cir.1986)) and
“[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 the amended § 2255,”
Cradle, 290 F.3d at 539, Garner simply has not
shown that § 2255 was inadequate or ineffective in
his case. Rather, he has merely demonstrated that his
efforts to rely on § 2255 have thus far been
unavailing. In sum, the Dorsainvil exception, under
which § 2241 relief could be available in lieu of a
motion under 28 U.S.C. § 2255, simply has no
application here. Instead, the petitioner's current §
2241 petition seems explicitly premised on a notion
of judge-shopping, a desire to litigate these legal
claims in a different forum. Such a claim is plainly
inadequate as an excuse for foregoing the proper
course of litigating collateral challenges to a
petitioner's federal conviction, and, therefore, this
request must be rejected by this court. Manna v.
Schultz, 591 F.3d 664 (3d. Cir.2010).

*6 Recognizing that this matter is not appropriately
brought before this Court, we acknowledge that the
petition could be dismissed. Indeed, dismissal is
often the favored course where, as here, a § 2255
petition would be a second or successive petition and
the petitioner has not made the legal showing before
the court of appeals that is necessary to justify a
successive filing. White v. Zickefoose, CIV
10–0548(RMB), 2010 WL 1050171 (D.N.J. Mar.
19, 2010) (“Because petitioner does not assert any
ground for relief justifying authorization to file a
second or successive § 2255 petition, and because
petitioner has filed a § 2255 case which asserts the
exact claims as in this petition, and is being reviewed
by the [Appellate] Circuit, it does not appear that
transfer would be in the interest of justice.
Accordingly, the petition will be dismissed.”).

In the alternative, the petition could be transferred to
the Northern District of Ohio, so the sentencing
district court may consider this petition. Federal
habeas corpus proceedings are essentially civil
proceedings, and as such are governed by the
statutes and rules which apply generally to civil
litigation. Thus, such petitions are also subject to the
general rules governing venue in civil litigation,
including Title 28 U.S.C. § 1404(a), which states as
follows: “For the convenience of parties and
witnesses, in the interest of justice, a district court
may transfer any civil action to any other district of
division where it might have been brought.”

Adhering to this familiar principle, we note that
when courts in this district have been confronted by
habeas petitions, like the petition lodged here, which
challenge aspects of a sentence imposed by another
federal district court, they have often relied upon §
1404 to order the transfer of the petition to the
sentencing court for its consideration. In reaching
this result we have observed that:
The Court may apply “traditional venue
considerations,” including convenience to the
parties, where material events took place, and where
records and witnesses pertinent to a petitioner's
claim may be found, to habeas cases. Braden v. 30th
Judicial Circuit Court, 410 U.S. 484, 49394, 93
S.Ct. 1123, 35 L.Ed.2d 443 (1973). Indeed, this
Court has followed this course of action in other
cases where an inquiry into the sentencing court's
intent was necessary to properly dispose of a
petition..... See Argentina v. Sniezek, Civil No.
4:09–CV–0382, 2010 WL 2632561, at *2
(M.D.Pa.Jun.28, 2010) (Jones, J.); Gardner v.

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Williamson, Civil No. 3:07–CV–1788, 2008 WL
1752229, at *4 (M.D.Pa. April 14, 2008) (Munley,
J.) (citing Verissimo v. INS, 204 F.Supp.2d 818, 820
(D.N.J.2002) (finding that “a habeas petition may be
transferred to the district court of the state in which
the petitioner was sentenced and convicted, even if
the petitioner was transferred to prison in a different
state.”); Wilkins v. Erickson, 484 F.2d 969, 973 (8th
Cir.1973) (allowing transfer of habeas corpus case
from the District of South Dakota to the District of
Montana because “Montana, the state of conviction
and sentencing, is the most convenient forum
because of the availability of witnesses and
records.”).).
*7 Stover v. Sniezek, No. 1:10–CV–1213, 2010 WL
3220318, *4 (M.D.Pa. Aug.12 2010) (Jones, J.); see,
e.g., Argentina v. Sniezek, Civil No. 4:09–CV–0382,
2010 WL 2632561, *2 (M.D.Pa.Jun.28, 2010)
(Jones, J.); Gardner v. Williamson, Civil No.
3:07–CV–1788, 2008 WL 1752229, *4 (M.D.Pa.
April 14, 2008) (Munley, J.).

In this case, the prerequisites for a transfer of this
matter to the Northern District of Ohio pursuant to
28 U.S.C. § 1404 are fully satisfied. At the outset, it
is apparent that the Northern District of Ohio is
another district where this claim might have been
brought through a motion under 28 U.S.C. § 2255.
Indeed, that district is the most appropriate venue for
this particular challenge to this conviction and
sentence.

It is also evident that the second prerequisite for a
transfer order is present here. A transfer of this
action to the Northern District of Ohio would serve:
“the convenience of parties and witnesses, [and] the
interest of justice.” 28 U.S.C. § 1404(a). As we have
previously noted when transferring other petitions to
the sentencing district:
Because the District Court ... sentenced the
petitioner, the events material to the case took
place in that district. In addition, the court in
that district has access to the evidence that led
the court to make its sentencing ...
determination and can best access any
witnesses necessary to investigate the case.
The interests of judicial efficiency and
economy would best be served by transferring
the case to the [sentencing court].
Gardner v. Williamson, supra, 2008 WL 1752229,

at *4.

Finally, we note that an order transferring this case
to the sentencing district for further proceedings also
protects the petitioner's rights as a pro se litigant.
Such a transfer order avoids any unintended
prejudice to the petitioner which might flow from a
dismissal of this action. See Burnett v. New York
Cent. R. Co., 380 U.S. 424, 430, 85 S.Ct. 1050, 13
L.Ed.2d 941 (1965). Moreover, addressing the
question of venue in this fashion would not
constitute a ruling on the merits of the petitioner's
claims, thus assuring that the petitioner can have his
case heard on its merits in the most appropriate
forum. See, 18 Wright, Miller & Cooper Federal
Practice and Procedure, § 4436, at 338 (stating that
“a dismissal for lack of jurisdiction or improper
venue does not operate as an adjudication upon the
merits”) (footnote omitted).

In sum, Garner invites this Court under the guise of
a habeas petition to do something which the
sentencing court must do, and set aside his
conviction due to an alleged sentencing error. We
should decline this invitation, given that Garner has
made no showing that § 2255 is inadequate or
ineffective to test the legality of his conviction, and
that the remedy afforded under § 2241 is not an
additional, alternative, or supplemental remedy to
that prescribed under § 2255. Consequently, this
Court should either dismiss this petition without
prejudice or transfer this petition to the Northern
District of Ohio pursuant to 28 U.S.C. § 1404, so
that court may address these claims.

III. Recommendation
*8 Accordingly, for the foregoing reasons, IT IS
RECOMMENDED, that this Court should either
dismiss this petition without prejudice or transfer
this petition to the Northern District of Ohio
pursuant to 28 U.S.C. § 1404, so that court may
address Garner's claims.

Petitioner is placed on notice that pursuant to Local
Rule 72.3:
Any party may object to a magistrate judge's
proposed findings, recommendations or report
addressing a motion or matter described in 28
U.S.C. § 636(b)(1)(B) or making a
recommendation for the disposition of a

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prisoner case or a habeas corpus petition
within fourteen (14) days after being served
with a copy thereof. Such party shall file with
the clerk of court, and serve on the magistrate
judge and all parties, written objections which
shall specifically identify the portions of the
proposed findings, recommendations or report
to which objection is made and the basis for
such objections. The briefing requirements set
forth in Local Rule 72.2 shall apply. A judge
shall make a de novo determination of those
portions of the report or specified proposed
findings or recommendations to which
objection is made and may accept, reject, or
modify, in whole or in part, the findings or
recommendations made by the magistrate
judge. The judge, however, need conduct a
new hearing only in his or her discretion or
where required by law, and may consider the
record developed before the magistrate judge,
making his or her own determination on the
basis of that record. The judge may also
receive further evidence, recall witnesses or
recommit the matter to the magistrate judge
with instructions.

Submitted this 22d day of January, 2015.

All Citations
Not Reported in F.Supp.3d, 2015 WL 539840

Footnotes

1

Convenience of parties, interest of justice, action could have originally been brought in the Northern District of Ohio.

1

In this regard Garner candidly notes that he has already unsuccessfully pursued both a direct appeal and an initial post-conviction
motion under 28 U.S.C. § 2255.

End of Document

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