United States District Court, D. New Jersey
September 21, 2005.
MARCELLUS AUTREY, Petitioner,
WARDEN C.J. DeROSA, Respondent.
The opinion of the court was delivered by: JEROME SIMANDLE, District Judge
Petitioner Marcellus Autrey, 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, the
Addendum, and all attached exhibits, and are accepted as true for
purposes of this Opinion and accompanying Order.
On or about October 2, 1997, in the U.S. District Court for the
Eastern District of Pennsylvania, Petitioner pleaded guilty to
attempt to possess with intent to distribute cocaine, in
violation of 21 U.S.C. § 846. On July 24, 1998, Petitioner was
sentenced to a term of 240 months' imprisonment. Petitioner
appealed to the U.S. Court of Appeals for the Third Circuit,
which affirmed the conviction and sentence on June 2, 1999. See
United States v. Autrey, No. 96-cr-0240 (E.D. Pa.), Docket
Entry No. 134.
On July 19, 2000, Petitioner filed a motion to vacate, set
aside, or correct sentence under 28 U.S.C. § 2255. See United
States v. Autrey, No. 96-cr-0240 (E.D. Pa.), Docket Entry No.
135; Autrey v. United States, No. 00-cv-3633 (E.D. Pa.). The
District Court for the Eastern District of Pennsylvania denied
the § 2255 motion, and the Court of Appeals for the Third Circuit denied a certificate of appealability. See United States v.
Autrey, No. 96-cr-0240 (E.D. Pa.), Docket Entries Nos. 146, 150.
Petitioner has filed in this Court a Petition for writ of
habeas corpus, pursuant to 28 U.S.C. § 2241. Petitioner contends
that the trial court committed plain error when it accepted his
guilty plea and sentenced him to a mandatory minimum of 240
months under 21 U.S.C. § 841(b), because in this reverse sting
operation there was no "detectable amount" of actual cocaine.
Instead, the substance involved in the reverse sting operation
was only "sham" cocaine, made to have the appearance of real
cocaine. Petitioner contends that no mandatory minimum sentence
can be triggered where there is no "detectable amount" of actual
cocaine involved in the transaction. Petitioner's counsel made
this argument at the sentencing hearing.
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, despite the fact that he previously has filed a motion
under 28 U.S.C. § 2255, which prohibits second or successive
motions except under narrowly-defined circumstances.
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 appears to have presented to the sentencing
court the very claim he asserts here. Even if the claim
previously asserted were not precisely the same as that presented
here, Petitioner has failed to assert facts that would bring this
claim within the Dorsainvil exception. Accordingly, the
Petition must be construed as a motion to vacate, set aside, or
correct sentence under 28 U.S.C. § 2255,*fn2 which must be
filed in the district of conviction, and over which this Court
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 Third Circuit, as
Petitioner fails to assert any facts that would bring this claim
within the exceptions permitted for second or successive
For the reasons set forth above, the Petition will be dismissed
without prejudice for lack of jursidiction.
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