NOT FOR PUBLICATION UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY
April 29, 2011
MICHAEL EDWARD SHARPE, PETITIONER,
J.T. SHARTLE, RESPONDENTS.
The opinion of the court was delivered by: Hon. Noel L. Hillman
HILLMAN, District Judge
Michael Edward Sharpe, a prisoner confined at FCI Fairton in New Jersey, filed a Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2241 challenging a federal sentence imposed by judgment in a criminal case filed June 15, 2005, in the United States District Court for the Eastern District of Pennsylvania. For the reasons set forth below, this Court will dismiss the Petition for lack of jurisdiction.
On January 21, 2003, a federal grand jury sitting in the Eastern District of Pennsylvania returned a superseding indictment charging Petitioner with five counts, including assault on a federal employee in violation of 18 U.S.C. §§ 111 and 1114 (Count Five). (Docket Entry #1, p. 18). See United States v. Sharpe, Crim. No. 02-0771 (TJS)-1 superseding indictment (E.D. Pa. Jan. 21, 2003). On June 30, 2004, the parties filed a plea agreement whereby Petitioner pled guilty to counts four (possession of a firearm by a convicted felon) and five (assault on a federal officer) of the superseding indictment, and count one of the information (carrying a firearm during a crime of violence). (Docket Entry #1, pp. 20, 27.) On June 15, 2005, Judge Timothy J. Savage sentenced Petitioner to imprisonment for 60 months on count four and a consecutive 24 months on count five. Id., pp. 34-39. However, the written judgment mistakenly states that Petitioner pled guilty to assault on a federal employee in violation of 18 U.S.C. §§ 111 and 114,*fn1 instead of §§ 111 and 1114.*fn2 Id., p. 34; Sharpe, Crim. No. 02-0771 (TJS)-1 judgment (E.D. Pa. June 15, 2005).
On April 30, 2007, Petitioner filed a motion to vacate pursuant to 28 U.S.C. § 2255, which Judge Savage denied on November 2, 2007. See Sharpe, Crim No. 02-0771 (TJS)-1 mem. opinion & order (E.D. Pa. Nov. 2, 2007). The Third Circuit denied a certificate of appealability. See Sharpe, docket entry #79. Petitioner filed a motion for correction or modification of the record, arguing that he was actually innocent of assault on a federal officer, which Judge Savage denied on December 2, 2010. Id., docket entry #89.
On April 26, 2011, Petitioner filed the § 2241 Petition presently before this Court. Petitioner asks this Court to withdraw the plea agreement and vacate the judgment finding him guilty of 18 U.S.C. § 111 and 114 on the following grounds: (1) because he is actually innocent of violating 18 U.S.C. § 114 and relief under § 2255 is no longer available, § 2255 is inadequate and ineffective for his actual innocence claim; (2) his guilty plea violates Rule 11 because he was never advised that he was pleading guilty to 18 U.S.C. § 114 and understood he was charged with and was pleading guilty to 18 U.S.C. § 1114; (3) counsel was ineffective in failing to investigate and accurately advise Petitioner what he was pleading guilty to; (4) the conviction and sentence violate due process. (Docket Entry #1, pp. 8-10.)
Section 2241 of Title 28 of the United States Code provides
in relevant part:
(c) 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).
Generally, a challenge to the validity of a federal conviction or sentence must be brought under 28 U.S.C. § 2255. See Davis v. United States, 417 U.S. 333 (1974); Okereke v. United States, 307 F.3d 117, 120 (3d Cir. 2002). This is because 28 U.S.C. § 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." *fn3 See 28 U.S.C. § 2255(e). Specifically, § 2255(e) 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(e); see Cradle v. U.S. ex rel. Miner, 290 F.3d 536 (3d Cir. 2002); In re Dorsainvil, 119 F.3d 245, 251 (3d Cir. 1997); Millan-Diaz v. Parker, 444 F.2d 95 (3d Cir. 1971); Application of Galante, 437 F.2d 1164 (3d Cir. 1971) (per curiam); United States ex rel. Leguillou v. Davis, 212 F.2d 681, 684 (3d Cir. 1954).
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. The provision exists to ensure that petitioners have a fair opportunity to seek collateral relief, not to enable them to evade the statute of limitations under § 2255 or the successive petition bar. Id. at 539.
In In re Dorsainvil, 119 F.3d at 251, the United States Court of Appeals for the Third Circuit applied the "inadequate or ineffective" test to a § 2241 claim challenging a sentence on the basis of a change of substantive law that occurred after Dorsainvil's first § 2255 motion was decided.*fn4 The Court of Appeals first determined that Dorsainvil could not raise the Bailey claim in a successive § 2255 motion because the AEDPA restricted successive § 2255 motions to constitutional claims.
While the Third Circuit found § 2255 inadequate and ineffective under the narrow circumstances present in that case, the court cautioned:
We do not suggest that § 2255 would be "inadequate or ineffective" so as to enable a second petitioner to invoke § 2241 merely because that petitioner is unable to meet the stringent gatekeeping requirements of the amended § 2255. Such a holding would effectively eviscerate Congress's intent in amending § 2255. However, allowing someone in Dorsainvil's unusual position - that of a prisoner who had no earlier opportunity to challenge his conviction for a crime that an intervening change in substantive law may negate, even when the government concedes that such a change should be applied retroactively - is hardly likely to undermine the gatekeeping provisions of § 2255.
Dorsainvil at 251 (emphasis added).*fn5
Here, Petitioner's challenges to his sentence are within the scope of claims cognizable under § 2255, and thus he may not seek relief under § 2241 unless the remedy under § 2255 is inadequate or ineffective. Section 2255 is not inadequate or ineffective for Petitioner's claims, however, because he does not contend that, as a result of a Supreme Court decision issued subsequent to his conviction, the conduct for which he was convicted (assaulting a federal officer) is now non-criminal. See Dorsainvil, 119 F. 3d at 250 ("A Supreme Court decision interpreting a criminal statute that resulted in the imprisonment of one whose conduct was not prohibited by law presents exceptional circumstances where the need for the remedy afforded by the writ of habeas corpus is apparent") (quoting Davis v. United States, 417 U.S. 333, 346 (1974)); Massey v. United States, 581 F. 3d 172 (3d Cir. 2009) (petitioner may not challenge federal sentence on Booker grounds via a writ of audita querela); Okereke v. United States, 307 F.3d 117 (3d Cir. 2002) ("Unlike the intervening change in law in In re Dorsainvil that potentially made the crime for which that petitioner was convicted non-criminal, Apprendi dealt with sentencing and did not render conspiracy to import heroin, the crime for which Okereke was convicted, not criminal. Accordingly, under our In re Dorsainvil decision, § 2255 was not inadequate or ineffective for Okereke to raise his Apprendi argument"). Because § 2255 is not an inadequate or ineffective remedy for Petitioner's challenges to his sentence and conviction, this Court lacks jurisdiction to entertain the Petition under § 2241 and will dismiss the Petition for lack of jurisdiction.*fn6
The Court dismisses the Petition for lack of jurisdiction.
NOEL L. HILLMAN, U.S.D.J.