United States District Court, D. New Jersey
September 9, 2005.
ANGELO B. PERRY, Petitioner,
JONATHAN C. MINER, Respondent.
The opinion of the court was delivered by: JEROME SIMANDLE, District Judge
Petitioner Angelo B. Perry, a federal prisoner currently
confined at the Federal Correctional Institution at Fairton, New
Jersey, has submitted a petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2241,*fn1 challenging the conviction
and sentence pursuant to which he is confined. Because this Court lacks jurisdiction to consider this
Petition, and it is not in the interest of justice to transfer
the Petition, this Court will dismiss the Petition, without
prejudice, for lack of jurisdiction.
The following background facts are taken from the Petition and
attachments, and are accepted as true for purposes of this
Opinion and accompanying Order.
On June 7, 1993, Petitioner pleaded guilty in the U.S. District
Court for the Middle District of Georgia to possession of cocaine
base with intent to distribute, in violation of
21 U.S.C. § 841(a). On November 8, 1993, he was sentenced to a term of
imprisonment of 163 months, pursuant to which he remains
Petitioner filed a motion to vacate, set aside, or correct
sentence pursuant to 28 U.S.C. § 2255, which was denied. The
denial was affirmed on appeal to the Court of Appeals for the
Eleventh Circuit. In its opinion, entered March 17, 1997, the
Court of Appeals described the evidence supporting his
conviction, including some evidence which Petitioner states was
not included in the indictment or provided to his counsel before
Petitioner entered his guilty plea.
On April 27, 2005, this Court received Petitioner's § 2241
habeas Petition, dated April 23, 2005, alleging (1) that his guilty plea was not made knowingly and voluntarily, because he
was not aware of the information referred to by the Court of
Appeals in its March 17, 1997, opinion and (2) that his sentence
is illegal, because it is based upon information contained in the
pre-sentence report, respecting the nature of the conspiracy and
the amount of cocaine involved in the conspiracy, that he did not
admit to during the guilty plea and that were not found by a jury
beyond a reasonable doubt.*fn2 Petitioner cites United
States v. Booker, 125 S.Ct. 738 (2005), in support of his
argument that the mandatory minimum sentence imposed pursuant to
the U.S. Sentencing Guidelines is invalid.*fn3
Petitioner has filed two Motions for leave to file an Amended
Petition, (Docket Entries Nos. 2, 4), neither of which raises claims different from those asserted in the original
Petition. Accordingly, the motions for leave to file amended
petitions will be denied.
In addition, Petitioner has moved (Docket Entry No. 8) to alter
or amend this Court's Order entered July 21, 2005, denying the
Motion for Bail. This Court's disposition of the Petition renders
this motion moot.
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. Petitioner's claims
Petitioner contends that he is entitled to habeas relief under
§ 2241, 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
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.). In addition, the mere fact that a claim is time barred
does not render § 2255 an inadequate or ineffective remedy. See
Cradle v. United States, 290 F.3d 536, 539 (3d Cir.
Petitioner's inability to meet the limitations and gatekeeping
requirements of § 2255 does not render it an inadequate or
ineffective remedy with respect to the claims asserted in this
Petition. Accordingly, the Petition must be construed as a motion
to vacate, set aside, or correct sentence under
28 U.S.C. § 2255,*fn5 which must be filed in the district of conviction, and over which this Court lacks
Whenever a civil action is filed 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. A second or successive § 2255 motion
may be brought in the district of conviction only if the
applicable Court of Appeals has authorized such filing.
28 U.S.C. § 2244.
It does not appear that it would be in the interest of justice
to transfer this Petition to the Court of Appeals for the
Eleventh Circuit, as a request for leave to file a second or
successive § 2255 motion. The Court of Appeals for the Eleventh
Circuit has held that Booker does not apply retroactively to
cases on collateral review. In re Anderson, 396 F.3d 1336
(11th Cir. 2005). In addition, Petitioner has indicated that
the claim that his guilty plea was not entered knowingly and
voluntarily is based upon facts that became known to him no later
than 1997, substantially more than one year before this Petition
was submitted. III. CONCLUSION
For the reasons set forth above, the Petition will be dismissed
without prejudice. All pending Motions will be denied. An
appropriate order follows.
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