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Falsebork v. Bailey

October 26, 2000


The opinion of the court was delivered by: Simandle, District Judge



Presently before the court is Merrick R. Falsebork's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241, filed by Mr. Falsebork ("Petitioner") on September 19, 2000.


Petitioner Falsebork, who appears pro se, is currently incarcerated at Federal Correctional Institution Fort Dix, New Jersey ("FCI Fort Dix"). On December 27, 1991, in the Eastern District of Virginia, Norfolk, Petitioner pled guilty to possession with intent to distribute one kilogram of cocaine in violation of 21 U.S.C. § 841(a)(1). On March 17, 1992, Petitioner was sentenced to 235 months imprisonment by Judge J. Calvitt Clarke, Jr. Petitioner appealed his conviction and sentence to the Fourth Circuit Court of Appeals, and the conviction was affirmed on September 1, 1993. Petitioner then filed a motion on September 21, 1997, attacking the sentence under 28 U.S.C. § 2255 on the basis of ineffective assistance of counsel and violation of the Ex Post Facto Clause, which motion was denied by the sentencing court on March 2, 1999. Petitioner appealed the denial of his 28 U.S.C. § 2255 petition to the Fourth Circuit Court of Appeals. Petitioner's appeal was dismissed by the Fourth Circuit on August 25, 1999. Petitioner now brings this Section 2241 petition in the district of his incarceration, alleging that his sentence was unconstitutional under the principles of Apprendi v. New Jersey, 120 S. Ct. 2348 (2000).


As explained below, this court finds that we do not have jurisdiction over this petition, which should have been brought under as a successive 28 U.S.C. § 2255 petition before the court of appeals for the district in which petitioner was sentenced. Petitioner argues that he should be allowed to challenge the imposition of his sentence under Section 2241 because the remedy afforded under Section 2255 is, in this case, "inadequate or ineffective to test the legality of his detention" as discussed in In re Dorsainvil, 119 F.3d 245, 251 (3d Cir. 1997). As discussed below, this Court finds that 28 U.S.C. § 2255 is adequate to address Petitioner's complaints, and therefore, we are without jurisdiction to rule on the merits of Falsebork's petition. As such, this case will be transferred to the Fourth Circuit Court of Appeals to be evaluated as a successive § 2255 petition. *fn1

28 U.S.C. § 2241 constitutes the general habeas corpus statute under which federal prisoners may seek relief for claims of unlawful custody. A petition brought under Section 2241 challenges the very fact or duration of physical imprisonment, and seeks a determination that the Petitioner is entitled to immediate release or a speedier release from that imprisonment. Preiser v. Rodriguez, 411 U.S. 475, 484-86, 500 (1973). See also Benson v. New Jersey State Parole Bd., 947 F. Supp. 827, 829-31 (D.N.J. 1996) (noting § 2241 generally appropriate only for claims challenging continued execution of sentence for which immediate or speedier release is appropriate).

Congress amended 28 U.S.C. § 2255 as part of the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 ("AEDPA"). As of the AEDPA's effective date of April 24, 1996, a motion to vacate, correct or set aside a sentence under § 2255 must be filed in the sentencing court within one year of the latest of (1) the date on which the judgment of conviction became final; (2) the date of the removal of any impediment to making such a motion that was created by unlawful government action; (3) the date on which a right asserted by a movant was first recognized by the Supreme Court and made retroactive to cases pending on collateral review; or (4) the date on which the movant could have discovered the facts supporting the claim[s] presented through the exercise of due diligence. Id. Furthermore, once a prisoner has filed one § 2255 motion, he may not file another unless he first obtains a certification from a panel of the appropriate court of appeals permitting him to do so on the grounds of (1) newly discovered evidence that would clearly and convincingly negate the possibility that a reasonable factfinder would have found the movant guilty of the offense charged, or (2) a previously unavailable and retroactively applicable new rule of constitutional law. Id.

The Third Circuit recognized in Dorsainvil that there may be some rare situations in which a prisoner who cannot satisfy the gatekeeping requirements of § 2255 should be permitted to proceed under § 2241, but emphasized that a prisoner's inability or failure to comply with those gatekeeping requirements generally does not render § 2255 "inadequate or ineffective" so as to permit resort to § 2241, noting that such a holding "would effectively eviscerate Congress's intent in amending § 2255." Dorsainvil, 119 F.3d at 251.

The Dorsainvil exception is an extremely narrow one, not applicable here. Petitioner alleges that the remedy available to him under § 2255 is inadequate or ineffective to test the legality of the sentence imposed by the sentencing court. *fn2

Despite Petitioner's assertion that this court should review the sentencing imposed in the Eastern District of Virginia "rather than transferring the matter to a Circuit currently under scrutiny for judicial bias towards a certain class of litigants," (Pet'r's Br. at 13), this Court does not have jurisdiction to review the impartiality of a fellow district court, and therefore Petitioner must pursue the challenge to his sentence in the Fourth Circuit Court of Appeals.

Because this Court is without jurisdiction, we will not address Petitioner's argument that the United States Supreme Court's recent decision in Apprendi v. New Jersey, created a new rule of constitutional law, which was previously unavailable to him, and which has been made retroactive to cases on collateral review. 120 S. Ct. 2348, U.S. , 147 L. Ed. 2d 435 (2000). If plaintiff is correct, § 2255 provides the basis for relief if the court of appeals finds that the Apprendi decision constitutes a "new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable."

Although he filed his present application as a motion under § 2241, this Court finds that petitioner in his present application is simply seeking to again challenge the sentence imposed by the trial court. This relief already was denied by the Eastern District of Virginia in petitioner's initial § 2255 petition, and petitioner's present motion, which again argues that his sentencing was improper, is therefore actually an application for habeas relief under § 2255. Accordingly, in the interests of justice, we will transfer this petition to the Fourth Circuit Court of Appeals, pursuant to 28 ...

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