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Soreide v. Zickefoose

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY


May 11, 2010

ARNE SOREIDE, PETITIONER,
v.
WARDEN D. ZICKEFOOSE, RESPONDENT.

The opinion of the court was delivered by: Renée Marie Bumb United States District Judge

MEMORANDUM OPINION AND ORDER

IT APPEARING THAT:

1. In December of 2009, Petitioner filed his Petition, pursuant to 28 U.S.C. § 2241. See Docket Entry No. 1.

2. In January of 2010, Petitioner submitted his filing fee. See Docket Entry No. 2.

3. In light of the statements made in the Petition (which led the Court to believe that it might have jurisdiction over this matter), the Court directed Respondent to answer the Petition. See Docket Entry No. 3.

4. In March of 2010, Petitioner filed a motion ("Motion") seeking to correct and amend his Petition. See Docket Entry No. 5. As detailed below, the Motion suggests that the Court has no jurisdiction over Petitioner's claims. Therefore, the Court will dismiss Petitioner's claims for lack of jurisdiction and will vacate its order directing Respondent's answer. However, out of an abundance of caution, the Court will also direct the Clerk to open a new and separate matter for Petitioner to ensure that Petitioner has a full and meaningful opportunity to assert the claims over which the Court might have jurisdiction.

5. 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).

6. 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.*fn1 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.*fn2 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. "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.

7. The Court of Appeals for the Third Circuit has recognized that, under certain very rare situations, a prisoner who cannot satisfy the gate-keeping requirements of § 2255 should be permitted to proceed under § 2241, which has neither a limitations period nor a proscription against filing successive petitions. See Dorsainvil, 119 F.3d at 251. The Dorsainvil exception, which addresses what makes a § 2255 motion "inadequate and ineffective," is satisfied only where petitioner "had no earlier opportunity to challenge his conviction for a crime that an intervening change in substantive law may negate." Id. 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. at 251-52. In circumstances other than those falling within the narrow Dorsainvil exception, § 2255 cannot be deemed an inadequate nor ineffective vehicle for petitioner's challenges that his trial or appellate courts erred as to his sentence and/or conviction. Therefore, in all situations other than those falling within the narrow Dorsainvil exception, the district court is constrained to dismiss § 2241 petition for lack of jurisdiction.

8. Here, the Petition unambiguously indicated that Petitioner already had his § 2255 motion denied by his sentencing court, and that denial was affirmed by the United States Court of Appeals for the Eleventh Circuit. See Docket Entry No. 1, at 12. However, the Petition also vaguely suggested Petitioner's position that the conduct for which he was convicted and sentenced is no longer qualified as a criminal conduct at all in light of the decisions entered by the Supreme Court after Petitioner's conviction and § 2255 proceedings. Such alternative reading was the sole reason for the Court's conclusion that it might have § 2241 jurisdiction over Petitioner's claims and, thus, the rationale underlying the Court's decision to direct Respondent's answer.

9. Petitioner's Motion, however, suggests that the Court's alternative reading was unwarranted. See Docket Entry No.

5. In no ambiguous terms, the Motion states that Petitioner wishes to litigate: (a) alleged denial of counsel at his evidentiary hearing; (b) counsel's alleged failure to file notice of appeal (during unspecified proceedings); (c) alleged confiscation of Petitioner's assets without an order of forfeiture; (d) alleged violations of due process (during unspecified proceedings); (e) alleged violations of the holding of Brady v. United States, 397 U.S. 742 (1970); (f) alleged imposition of undue restitution; (g) alleged errors in jury instructions; and (h) alleged impropriety of prosecutorial statements during summation. See id. None of the statements made in the Motion suggests, even vaguely, that Petitioner is asserting that the conduct for which he was convicted is no longer a crime in light of the Supreme Court decisions entered after Petitioner's conviction and § 2255 proceedings. See id.

10. In light of the foregoing, it appears that Petitioner's challenges fall within two categories: (a) challenges over which the Court has no jurisdiction because § 2255 is neither an inadequate nor ineffective vehicle to raise such claims (i.e., Petitioner's allegations that he was denied counsel at his evidentiary hearing, or that his counsel failed to file a notice of appeal, or that his due process and Brady rights were violated, or that the jury instructions were deficient, or that his prosecutor made improper statements during summation); and (b) challenges over which the Court has no jurisdiction because these challenges have no effect on either the fact or duration of Petitioner's confinement (i.e., alleged confiscation of Petitioner's assets without an order of forfeiture and alleged imposition of undue restitution).*fn3 Therefore, in light of the clarifications provided in Petitioner's Motion, the Court is constrained to dismiss his Petition for lack of jurisdiction.*fn4 However, in the event Petitioner wished to assert challenges falling within the narrow Dorsainvil exception, the Court will allow Petitioner an opportunity to state these particular claims in an amended petition filed in a new and separate matter.

IT IS, therefore, on this 11th day of May 2010, ORDERED that Petitioner's Motion (Docket Entry No. 5) seeking to amend and correct his Petition (Docket Entry No. 1) is deemed Petitioner's supplemental Petition; and it is further

ORDERED that Petitioner's original Petition (Docket Entry No. 1) and Petitioner's supplemental Petition (Docket Entry No. 5) are dismissed for lack of jurisdiction; and it is further ORDERED that the Court's order, Docket Entry No. 3, directing Respondent's answer is vacated; and it is further

ORDERED that the Clerk shall close the file on this matter; and it is further

ORDERED that the Clerk shall open a new and separate matter for Petitioner designating "ARNE SOREIDE" as petitioner and "WARDEN D. ZICKEFOOSE" as respondent, and designating "Cause: 28:2241 Petition for Writ of Habeas Corpus" and "Jurisdiction: U.S. Government Defendant"; and it is further

ORDERED that the Clerk shall assign this new and separate matter to the undersigned; and it is further

ORDERED that the Clerk shall docket Petitioner's original petition (filed in this matter and docketed in the instant matter as Docket Entry No. 1) in the new and separate matter opened for Petitioner, designating it "Docket Entry No. 1"; and it is further

ORDERED that the Clerk shall docket this Memorandum Opinion and Order in both the instant matter and the new and separate matter opened for Petitioner; and it is further

ORDERED that the Clerk shall administratively terminate the new and separate matter opened for Petitioner. Such termination shall be subject to reopening upon Petitioner's timely filing of an amended petition in the new and separate matter; and it is further

ORDERED that, in the event Petitioner wishes to assert challenges over which the Court has § 2241 jurisdiction (as explained to Petitioner in this Memorandum Opinion and Order), Petitioner may file an amended petition in the new and separate matter opened for him. Petitioner shall execute such filing within 45 days from the date of entry of this Memorandum Opinion and Order. The amended petition shall state Petitioner's challenges succinctly and clearly,*fn5 and Petitioner shall not attempt to re-raise the challenges over which the Court has no § 2241 jurisdiction; and it is further

ORDERED that the Clerk shall serve a copy of this Memorandum Opinion and Order upon the Chief, Civil Division, United States Attorney's Office, 970 Broad Street, Room 700, Newark, NJ 07102. Such service shall be executed by certified mail, return receipt requested, and -- in addition -- by means of electronic delivery; and it is finally

ORDERED that the Clerk shall serve a copy of this Memorandum Opinion and Order upon Petitioner by certified mail, return receipt requested, together with a blank § 2241 petition and a copy of the docket sheet of the new and separate matter opened for Petitioner.


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