United States District Court, D. New Jersey
December 16, 2005.
ANTONE H. POINTDEXTER, Petitioner,
JOHN NASH, Warden, Respondent.
The opinion of the court was delivered by: JEROME SIMANDLE, District Judge
Petitioner Antone H. Pointdexter, 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 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
Petitioner was convicted after a trial by jury in the United
States District Court for the Eastern District of Virginia to
various counts of firearms offenses. On July 10, 2000, he was
sentenced to serve 235 months imprisonment. Petitioner appealed
his conviction and sentence to the Court of Appeals for the
Fourth Circuit, who affirmed on March 26, 2001. Petitioner also
filed a motion to vacate his sentence, pursuant to
28 U.S.C. § 2255, which was denied in 2004.
On October 3, 2005, this Court received Petitioner's § 2241
habeas Petition, alleging that his sentence is unconstitutional
because it is based upon factual findings made by the judge that
were not found by a jury beyond a reasonable doubt. Petitioner
cites United States v. Booker, 543 U.S. 220 (2005) in support
of his argument that the sentence imposed pursuant to the U.S. Sentencing Guidelines is invalid.*fn2 Petitioner also
contends that he is "actually innocent" of the crimes charged,
but that he cannot proceed via a second or successive § 2255
motion because he "doesn't fit the criteria" to so proceed.
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.2d 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 has filed a previous § 2255
motion, because he is "actually innocent" of the enhancement and
relief under § 2255 now is "inadequate or ineffective." See In
re Dorsainvil, 119 F.3d 245 (3d Cir. 1997).
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. See 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. See id. at 251-52.
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, 145 Fed. Appx. 727, 2005 WL
1965500 (3d Cir.) (unpubl.), cert. denied, 126 S. Ct. 591
(2005). 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,*fn4 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. See
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 a request for leave to file a second or
successive § 2255 motion. Petitioner has already sought leave to
file a second or successive § 2255 motion with the Fourth Circuit
and was denied. Therefore, the instant Petition will be
dismissed, without prejudice to Petitioner filing in the Fourth
Circuit to seek leave to file a second or successive motion, if
he so chooses.
For the reasons set forth above, the Petition will be dismissed
without prejudice for lack of jurisdiction. An appropriate Order
accompanies this Opinion.
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