United States District Court, D. New Jersey
September 9, 2005.
STEPHEN AZIA TENENG, Petitioner,
WARDEN JOHN NASH, et al., Respondents.
The opinion of the court was delivered by: JEROME SIMANDLE, District Judge
Petitioner Stephen Azia Teneng, a federal prisoner currently
confined at the Federal Correctional Institution at Fort Dix, New
Jersey, has submitted a petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2241,*fn1 challenging the sentence
pursuant to which he is confined. Because this Court lacks jurisdiction to consider it, this
Court will dismiss the Petition without prejudice.
This statement of background facts is taken from the
allegations of the Petition, which are assumed to be true for
purposes of this Opinion and accompanying Order.
Petitioner asserts that he was convicted of various federal
offenses in the U.S. District Court for the Northern District of
Illinois. On December 9, 2003, he was sentenced to a term of
imprisonment of 75 months, pursuant to which he is presently
confined. The sentencing judge enhanced Petitioner's base offense
level under the U.S. Sentencing Guidelines, by finding that
Petitioner qualified for enhancements based upon obstruction of
justice, a vulnerable victim, and abuse of a position of trust.
Petitioner's direct appeal was dismissed at his request. See
United States v. Teneng, No. 04-1237 (7th Cir.) (motion to
dismiss filed May 24, 2004; order of dismissal entered June 1,
2004). The docket of the criminal action does not reveal that
Petitioner has filed a motion to vacate, set aside, or correct
the sentence under 28 U.S.C. § 2255, see United States v.
Teneng, Criminal Action No. 03-0190-1 (N.D. Ill.), nor does
Petitioner describe any § 2255 motion in his Petition.
On March 9, 2005, this Court received this Petition for writ of
habeas corpus pursuant to 28 U.S.C. 2241, which is dated March 2, 2005. Petitioner asserts that he did not admit to the facts
underlying the sentencing enhancements, nor did a jury find them
to be true beyond a reasonable doubt. He requests re-sentencing.
The Court construes this as a claim that Petitioner's sentence is
unlawful, under the rule announced in United States v. Booker,
125 S.Ct. 738 (2005).*fn2
A. Sua Sponte Dismissal
"Habeas corpus petitions must meet heightened pleading
requirements." McFarland v. Scott, 512 U.S. 849, 856 (1994). A
petition must "specify all the grounds for relief" and set forth
"facts supporting each of the grounds thus specified." See
28 U.S.C. § 2254 Rule 2(c) (amended Dec. 1, 2004), applicable to §
2241 petitions through Habeas Rule 1(b).
A court presented with a petition for 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 there." 28 U.S.C. § 2243. Thus,
"Federal courts are authorized to dismiss summarily any habeas
petition that appears legally insufficient on its face."
McFarland, 512 U.S. at 856; see also United States v.
Thomas, 221 F.3d 430, 437 (3d Cir. 2000); Siers v. Ryan,
773 F.3d 37, 45 (3d Cir. 1985), cert. denied, 490 U.S. 1025.
B. The Merits of Petitioner's Claim
Petitioner contends that he is entitled to habeas relief under
§ 2241, presumably because relief under § 2255 is "inadequate or
ineffective." See In re Dorsainvil, 119 F.3d 245 (3d Cir.
As noted by the Court of Appeals for the Third Circuit in
Dorsainvil, 119 F.3d at 249, a § 2255 motion, filed in the
district of conviction, has been the "usual avenue" for federal
prisoners seeking to challenge the legality of their confinement.
See also Okereke v. United States, 307 F.3d 117, 120 (3d Cir.
2002); United States v. Walker, 980 F.Supp. 144, 145-46 (E.D.
Pa. 1997) (challenges to a sentence as imposed should be brought
under § 2255, while challenges to the manner in which a sentence
is executed should be brought under § 2241, in the district of
confinement). Section 2255, however, contains a safety valve where "it
appears that the remedy by motion is inadequate or ineffective to
test the legality of [Petitioner's] detention." In Dorsainvil,
the Third Circuit held that the remedy provided by § 2255 is
"inadequate or ineffective," permitting resort to § 2241 (a
statute without timeliness or successive petition limitations),
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. The court emphasized, however,
that its holding was not intended to suggest that § 2255 would be
considered "inadequate or ineffective" merely because a
petitioner is unable to meet the stringent limitations or
gatekeeping requirements of § 2255. Id. To the contrary, the
court was persuaded that § 2255 was "inadequate or ineffective"
in the unusual circumstances presented in Dorsainvil because it
would have been a complete miscarriage of justice to confine a
prisoner for conduct that, based upon an intervening
interpretation of the statute of conviction by the United States
Supreme Court, may not have been criminal conduct at all. Id.
More recently, the Court of Appeals for the Third Circuit
emphasized the narrowness of its Dorsainvil holding when it
rejected a district court's conclusion that § 2255 was "inadequate or ineffective" to address a claim based on Apprendi
v. New Jersey, 530 U.S. 466, 490 (2000), an intervening decision
which held that, "[o]ther than the fact of a prior conviction,
any fact that increases the penalty for a crime beyond the
prescribed statutory maximum must be submitted to a jury, and
proved beyond a reasonable doubt." See Okereke v. United
States, 307 F.3d 117 (3d Cir. 2002) (in which the petitioner had
been sentenced based upon a drug quantity determined at
sentencing by a judge using the preponderance of evidence
standard). Similarly, § 2255 is not "inadequate or ineffective"
to address a claim based upon Booker, which is an extension of
Apprendi. See Smith v. Nash, 2005 WL 1965500 (3d Cir. Aug.
17, 2005) (unpubl.).
Because § 2255 is not an "inadequate or ineffective" remedy
with respect to Petitioner's Booker claim, this Court lacks
jurisdiction to entertain it under § 2241.*fn3 This Court
declines to recharacterize the Petition as a first § 2255 motion,
and transfer it to the court of conviction, as this Court "cannot
predict and protect against every possible adverse effect that
may flow from recharacterization." See Castro v. United
States, 540 U.S. 375, 387-88 (2003) (Scalia, J., concurring in
part). III. CONCLUSION
For the reasons set forth above, the Petition will be dismissed
without prejudice. An appropriate order follows.
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