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MILLIGAN v. NASH

September 14, 2005.

ROBERT MILLIGAN, Petitioner,
v.
JOHN NASH, Warden, Respondent.



The opinion of the court was delivered by: FREDA WOLFSON, Magistrate Judge

OPINION

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.

  I. BACKGROUND

  The following background facts are taken from the Petition and are accepted as true for purposes of this Opinion and accompanying Order.

  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).)

  II. ANALYSIS

  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 ...


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