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Terry v. Grondolsky

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY


March 31, 2009

ANTHONY DWAYNE TERRY, PETITIONER,
v.
J. GRONDOLSKY, RESPONDENT.

The opinion of the court was delivered by: Robert B. Kugler United States District Judge

MEMORANDUM ORDER

This matter is before the Court upon submission of Petitioner's application for habeas corpus relief under 28 U.S.C. § 2241, and it appearing that:

1. On the dates unspecified in the Petition, Petitioner: (a) pled guilty to federal firearm charges in the United States District Court for the Eastern District of Virginia; and (b) was sentenced, in that court, to 180 months of imprisonment.*fn1 See Docket Entry No. 1, at 1-2.

II. Petitioner did not appeal his conviction and sentence. See id. at 2. Rather, he filed either a § 2255 motion or a habeas petition with the court unspecified in the instant Petition.*fn2

See id. at 1.

III. On February 14, 2009, Petitioner executed the instant § 2241 application, which arrived unaccompanied by either Petitioner's filing fee or his application to proceed in this matter in forma pauperis. See id. at 4. In his Petition, Petitioner challenges constitutionality of his guilty plea and the ensuing sentence,*fn3 see id. at 2-3, although he paraphrases this challenge in terms of "execution" of his sentence.*fn4 See id. at 1.

IV. Petitioner asserts that this Court has jurisdiction to address his § 2241 Petition. See id. at 1. Specifically, Petitioner states that "Section 2255 [is a] wrongful remedy to attack [his] sentence." Id. at 1.

V. Petitioner errs. This Court is without jurisdiction under § 2241 to entertain Petitioner's instant application. 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, "[f]ederal 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.), cert. denied, 490 U.S. 1025 (1985). VI. Section 2241 of Title 28 of the United States Code provides in relevant part:

The writ of habeas corpus shall not extend to a prisoner unless- . . . He is in custody in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. § 2241(c)(3). As a result of the practical difficulties encountered in hearing a challenge to a federal sentence in the district of confinement rather than the district of sentence, in its 1948 revision of the Judicial Code, Congress established a procedure whereby a federal prisoner might collaterally attack his sentence in the sentencing court.*fn5 See 28 U.S.C. § 2255; Davis v. United States, 417 U.S. 333, 343-44 (1974); United States v. Hayman, 342 U.S. 205, 219 (1952). Section 2255 provides in relevant part:

A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.

28 U.S.C. § 2255. "Motions pursuant to 28 U.S.C. § 2255 are the presumptive means by which federal prisoners can challenge their convictions or sentences that are allegedly in violation of the Constitution." Okereke v. United States, 307 F.3d 117, 120 (3d Cir. 2002). This is because § 2255 expressly prohibits a district court from entertaining a challenge to a prisoner's federal sentence under § 2241 unless the remedy under § 2255 is "inadequate or ineffective" to test the legality of the petitioner's detention.*fn6 See 28 U.S.C. § 2255. Specifically, paragraph five of § 2255 provides:

An application for a writ of habeas corpus [pursuant to 28 U.S.C. § 2241] in behalf of a prisoner who is authorized to apply for relief by motion pursuant to this section, shall not be entertained if it appears that the applicant has failed to apply for relief, by motion, to the court which sentenced him, or that such court has denied him relief, unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of his detention.

28 U.S.C. § 2255; see Cradle v. Miner, 290 F.3d 536 (3d Cir. 2002); In re Dorsainvil, 119 F.3d 245, 251 (3d Cir. 1997). A § 2255 motion is inadequate or ineffective, authorizing resort to § 2241, "only where the petitioner demonstrates that some limitation of scope or procedure would prevent a § 2255 proceeding from affording him a full hearing and adjudication of his wrongful detention claim." Cradle, 290 F.3d at 538. "It is the inefficacy of the remedy, not the personal inability to use it, that is determinative." Id. (emphasis supplied). "Section 2255 is not 'inadequate or ineffective' merely because the sentencing court does not grant relief, the one-year statute of limitations has expired, or the petitioner is unable to meet the stringent gatekeeping requirements of the amended § 2255. The provision exists to ensure that petitioners have a fair opportunity to seek collateral relief, not to enable them to evade procedural requirements."*fn7 Id. at 539.

VII. Since § 2255 is neither inadequate nor ineffective vehicle for Petitioner's challenge that his trial court erred when it sentenced Petitioner, this Court is without jurisdiction to entertain the Petition under § 2241. The Court, therefore, is constrained to dismiss the Petition for lack of jurisdiction.

IT IS on this 31st day of March, 2009,

ORDERED that the Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 is DENIED for lack of jurisdiction;*fn8 and it is further

ORDERED that, within thirty days from the date of entry of this Order, Petitioner shall either submit his filing fee of $5.00 or his application establishing his qualification to prosecute this matter in forma pauperis; and it is finally

ORDERED that the Clerk shall serve this Order by regular mail upon Petitioner, together with a blank in forma pauperis application, and shall close the file on this matter.


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