United States District Court, D. New Jersey
September 14, 2005.
ROBERT MILLIGAN, Petitioner,
JOHN NASH, Warden, Respondent.
The opinion of the court was delivered by: FREDA WOLFSON, Magistrate Judge
Petitioner Robert Milligan, 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 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
are accepted as true for purposes of this Opinion and
On April 23, 1997, in the U.S. District Court for the District
of Maryland, Petitioner pleaded guilty to one count of arson in
violation of 18 U.S.C. § 844(i).*fn2 Petitioner was
sentenced to a term of imprisonment of 210 months.
On October 6, 1998, Petitioner's conviction was affirmed by the
U.S. Court of Appeals for the Fourth Circuit. On December 31,
1999, Petitioner filed in the sentencing court a motion to
vacate, set aside, or correct sentence, pursuant to
28 U.S.C. § 2255. On June 28, 2000, the sentencing court denied the motion.
Petitioner filed a Notice of Appeal and a Motion for Issuance of
a Certificate of Appealability.
On May 22, 2000, during the pendency of Petitioner's § 2255
motion in the sentencing court, the U.S. Supreme Court decided Jones v. United States, 529 U.S. 848, 850-51 (2000), holding
that "an owner-occupied residence not used for any commercial
purpose does not qualify as property `used in' commerce or
commerce-affecting activity; arson of such a dwelling, therefore,
is not subject to federal prosecution under § 844(i)." On August
9, 2000, the sentencing court granted a Certificate of
Appealability as to the issue of whether "vacant rental property"
meets the "current use" requirement set out in Jones. The Court
of Appeals for the Fourth Circuit affirmed the sentencing court's
denial of the § 2255 motion. See U.S. v. Milligan,
3 Fed.Appx. 169, 2001 WL 173171 (4th Cir. Feb. 22, 2001).
On August 9, 2005, this Court received this Petition for writ
of habeas corpus pursuant to 28 U.S.C. § 2241. Here, Petitioner
contends that his conviction under 18 U.S.C. § 844(i) is plainly
invalid under Jones, because the rental property he admittedly
burned was vacant at the time he burned it down. He states that
this Court has jurisdiction under § 2241 because the gatekeeping
provisions of § 2255 prevent him from filing a second or
successive § 2255 motion. (Petition, ¶ 2(c).)
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 claim
Petitioner contends that he is entitled to habeas relief under
§ 2241, because he cannot meet the gatekeeping provisions of §
2255, which prohibits second or successive motions except under
As noted by the Court of Appeals for the Third Circuit in In
re Dorsainvil, 119 F.3d 245, 249 (3d Cir. 1997), 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.
Petitioner's inability to meet the gatekeeping requirements of
§ 2255 does not render it an inadequate or ineffective remedy
with respect to the claims asserted in this Petition. To the
contrary, Petitioner presented to the sentencing court, and the
Court of Appeals for the Fourth Circuit, the very claim he
asserts here. Accordingly, the Petition must be construed as a
motion to vacate, set aside, or correct sentence under
28 U.S.C. § 2255,*fn3 which must be filed in the district of
conviction, and over which this Court lacks jurisdiction.
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 Fourth
Circuit, as it has addressed this very claim previously and found
For the reasons set forth above, the Petition will be dismissed
without prejudice for lack of jurisdiction.
© 1992-2005 VersusLaw Inc.