The opinion of the court was delivered by: Hillman, District Judge
Petitioner, Ronald Reginald Phillips, a federal prisoner confined at the Federal Correctional Institution in Fort Dix, New Jersey ("FCI Fort Dix"), brings this habeas petition pursuant to 28 U.S.C. § 2241, challenging his federal conviction. Petitioner names as party respondent, the United States of America.
This Court has reviewed the petition, and for the reasons set forth below, will dismiss this habeas action for lack of jurisdiction, as it is a prohibited second or successive motion under 28 U.S.C. § 2255.
The following facts are taken from the petition, and are accepted for purposes of this screening only. The Court has made no findings as to the veracity of petitioner's allegations.
Petitioner states that he was convicted in September 1989, in the United States District Court for the Northern District of Georgia, on numerous narcotics offenses, including drug trafficking and a charge of possession and use of a firearm in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c). (Petition at pg. 1). Petitioner was sentenced on November 21, 1989, to an aggregate term of 420 months in prison with ten years supervised release. (Pet., pg. 2). The United States Court of Appeals for the Eleventh Circuit affirmed his conviction in 1992. See United States v. Clavis, 956 F.2d 1079 (11th Cir. 1992). The United States Supreme Court denied certiorari in 1993. Clavis v. United States, 507 U.S. 998 (1993).
Petitioner filed his first motion to vacate, set aside or correct
sentence, pursuant to 28 U.S.C. § 2255, on August 25, 1995. This §
2255 motion was denied, and the appeal was later withdrawn. A second
motion was filed on November 19, 1996, and was dismissed. A third §
2255 motion was filed on December 21, 1999. (Pet., pg. 2). This motion
likewise was denied on March
24, 2000. See Phillips v. United States, Civil No. 1:99-cv-03364-WCO
(N.D. Ga., Mar. 24, 2000).
Petitioner filed this habeas petition on or about December 6, 2010. He does not allege that he sought authorization from the Eleventh Circuit to file a successive motion to challenge his conviction, as required under 28 U.S.C. §§ 2244(a), 2255. Rather, in the present petition, Petitioner asserts that his challenge to his § 924(c) may be considered under a § 2241 habeas petition pursuant to In re Dorsainvil, 119 F.3d 245 (3d Cir. 1997), and thus, this is not a prohibited second or successive §2255 motion.
II. DISCUSSION A. Standards for a Sua Sponte Dismissal 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.
Petitioner brings his habeas petition as a pro se litigant.
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).
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 ...