The opinion of the court was delivered by: Kugler, District Judge
Petitioner Martin R. Czeck, a prisoner currently confined at the FCI Fort Dix, in Fort Dix, New Jersey, has submitted a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 and an application to proceed in forma pauperis pursuant to 28 U.S.C. § 1915(a). The sole respondent in this matter is Donna Zickefoose.
Based on his affidavit of indigence, the Court will grant Petitioner's application to proceed in forma pauperis. Because it appears from a review of the Petition that this Court lacks jurisdiction, the Petition will be dismissed.
Petitioner is presently confined pursuant to a sentence, imposed by the United States District Court, District of Minnesota. The 1996 conviction was affirmed by the Eighth Circuit Court of Appeals, United States v. Czeck, 105 F.3d 1235 (8th Cir. 1997), and Czeck challenged his conviction in a timely 28 U.S.C. § 2255, which was denied on the merits, and affirmed by the Eighth Circuit, Czeck v. United States, No. 98-3047 (8th Cir. 1999), 1999 WL 170551 (unpublished opinion). Subsequently, Czeck proceeded with various state court proceedings challenging state criminal convictions from the 1980s and was successful in some of the challenges leading to vacated convictions. After the vacated convictions, Czeck later filed a 18 U.S.C. § 3582(c)(2) motion for modification and reduction of his sentence in the federal criminal case. The § 3582(c)(2) motion was denied because there were no retroactively applicable amendments to sentencing guidelines and even interpreting that motion as a request under § 2255 relief was also denied. Czeck's appeal of that ruling was denied by the Eighth Circuit, United States v. Czeck, 172 Fed.Appx. 687 (8th Circuit 2006)(unpublished opinion). In its opinion, the Eighth Circuit discussed why § 2255 relief was not available on this issue:
To the extent Czeck's motion amounted to a 28 U.S.C. § 2255 motion, insofar as he also sought to lower his sentence based on the vacation of his state court convictions, his claim also failed. Putting aside the question of whether Czeck's motion was second or successive, we find that it was untimely because Czeck waited more than six years after his federal conviction became final to petition the state court for habeas relief, and did not provide a sufficient excuse for the delay. See Johnson v. United States, 544 U.S. 295... (2005)(1-year limitation period for defendant seeking to reopen federal sentence enhanced by state sentence based on state court vacatur begins when petitioner receives notice of order vacating state conviction, provided he sought it with due diligence in state court after entry of judgment in federal case with enhanced sentence. 172 Fed.Appx. at 687, (emphasis added).
Czeck then filed in the court of conviction a petition for habeas corpus under 28 U.S.C. § 2241 which was dismissed for lack of subject matter jurisdiction*fn1 and a writ of audita querela which was also denied. Shortly thereafter, Petitioner filed this pending action for habeas relief under § 2241.
II. STANDARDS FOR A SUA SPONTE DISMISSAL
United States Code Title 28, Section 2243 provides in relevant part as follows:
A court, justice or judge entertaining an application for a 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 thereto.
A pro se pleading is held to less stringent standards than more formal pleadings drafted by lawyers. Estelle v. Gamble, 429 U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520 (1972). A pro se habeas petition and any supporting submissions must be construed liberally and with a measure of tolerance. See Royce v. Hahn, 151 F.3d 116, 118 (3d Cir. 1998); Lewis v. Attorney General, 878 F.2d 714, 721-22 (3d Cir. 1989); United States v. Brierley, 414 F.2d 552, 555 (3d Cir. 1969), cert. denied, 399 U.S. 912 (1970). Nevertheless, a federal district court can dismiss a habeas corpus petition if it appears from the face of the petition that the petitioner is not entitled to relief. See Lonchar v. Thomas, 517 U.S. 314, 320 (1996); Siers v. Ryan, 773 F.2d 37, 45 (3d Cir. 1985), cert. denied, 490 U.S. 1025 (1989). See also 28 U.S.C. §§ 2243, 2255.
Here, in the district of confinement, Petitioner contends that he is entitled to habeas relief under § 2241, despite the facts that he has filed, in the district of conviction, a direct appeal, a previous § 2255 motion, and a previous request for habeas relief § 2241 similar to the case presently before this Court. Petitioner's challenge ...