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Cusano v. United States

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY


November 6, 2009

FRANK CUSANO, PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT.

The opinion of the court was delivered by: Simandle, District Judge

MEMORANDUM OPINION

This matter is before the Court upon submission of Petitioner's application for habeas corpus relief, pursuant to 28 U.S.C. § 2241,*fn1 see Docket Entry No. 1, and it appearing that:

1. The Petition, which is a lengthy narrative composed of Petitioner's numerous legal conclusions having no obvious connection among themselves, does not allow the Court an in-depth understanding of Petitioner's claims. See id. However, it appears self-evident from the face of the Petition that the narrative, in its totality, expresses Petitioner's desire to challenge the judgment of conviction entered in his criminal case.*fn2 See id.

2. However, the Petition unambiguously indicates that Petitioner filed a § 2255 motion with his sentencing court, appealed denial of that motion to the United States Court of Appeals for the Second Circuit, and had his application for certiorari denied by the United States Supreme Court. See id. at 9.

3. Petitioner asserts that this Court has jurisdiction over Petitioner's instant application under In re Dorsainvil, 119 F.3d 245, 249-51 (3d Cir. 1997), and relies on the holding of Abuelhawa v. United States, 129 S.Ct. 2102 (2009). See Docket Entry No. 1, at 9-10.

4. 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).

5. 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.*fn3 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.*fn4 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 at 251. 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). Indeed, "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." Id. at 539.

6. The Dorsainvil exception, upon which Petitioner relies, is extremely narrow. In Dorsainvil, the Court of Appeals held that the remedy provided by § 2255 is "inadequate or ineffective" (hence, permitting resort to § 2241, a statute without timeliness or successive petition limitations), only where 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 In re Dorsainvil, 119 F.3d at 251-52.

7. Here, the Petition does not even suggest that Petitioner's conduct may not have been criminal conduct at all, and Petitioner's reference to Abuelhawa cannot cure this threshold shortcoming. The gist of Abuelhawa was as follows: in the course of listening under a cell phone tap warrant, the government recorded six calls between a suspected dealer and petitioner defendant. Defendant was charged with six felonies on the theory that each of the phone calls was made in violation of 21 U.S.C. § 843(b). The U.S. Court of Appeals for the Fourth Circuit affirmed his conviction; and the Supreme Court granted certiorari to resolve a split among the Courts of Appeals as to the scope of § 843(b). Addressing the issue of whether a usage of a telephone made a misdemeanor drug purchase facilitated felony drug distribution in violation of 21 U.S.C. § 843(b), the Court concluded that: (a) there was no question that Congress intended § 843(b) to impede illicit drug transactions by penalizing the use of communication devices in coordinating illegal drug operations, but (b) it did not follow from the language of the statute that Congress meant to expose a first-time buyer of drugs for personal use to the punishment far more severe than that reserved for a recidivist offender who purchases drugs without resorting to the use of communication devices, i.e., in person. In other words, the Abuelhawa Court never even suggested that drug transactions, be they sales or purchases, might be non-criminal; rather, the Court merely addressed the issues of severity of the crime and severity of the punishment.

8. The Petition -- while sketchily written -- unambiguously indicates that Petitioner committed an illegal drug transaction (or a series of such transactions), and was sentenced on the grounds of such offense(s).*fn5 Since the holding of Abuelhawa did not construe 21 U.S.C. § 843(b) as legalizing drug transactions,*fn6 § 2255 was neither inadequate nor ineffective vehicle for Petitioner's challenges to the severity of the charge to which he pled guilty (or to the severity of his sentence). In sum, this matter squarely falls outside the narrow Dorsainvil exception. This Court, therefore, is constrained to dismiss the Petition for lack of jurisdiction.*fn7 The accompanying Order will be entered.

Jerome B. Simandle United States District Judge


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