The opinion of the court was delivered by: Kugler, District Judge
Petitioner Timothy Adams, a prisoner currently confined at the FCI Fairton, in Fairton, 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 Warden Schultz.
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, Middle District of North Carolina. He was convicted of conspiracy to possess with intent to distribute and to distribute cocaine base ("crack"), in violation of 21 U.S.C. §§ 846 and 841(b)(1)(A). United States v. Timothy Adams, et. al., MDNC 6:94CR302-2. The conviction was affirmed by the Fourth Circuit Court of Appeals, United States v. Adams, 103 F.3d 120 (4th Cir. 1996)(table)(unpublished opinion at 1996 WL 721890), and the United States Supreme Court denied the petition for writ of certiorari, Adams v. United States, 520 U.S. 1180 (1997). Subsequently, Adams has filed numerous challenges to his sentence in both the Middle District of North Carolina and the District of New Jersey.
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 numerous unsuccessful challenges to his conviction, including motions under 28 U.S.C. § 2255 in the district of conviction and numerous petitions under § 2241 in this district. Second or successive motions under § 2255 are not permitted except in the instance of newly discovered evidence or a new rule of constitutional law that has been made retroactive. See 28 U.S.C. § 2255(h). Neither of those conditions exist here.
Petitioner hinges his challenge to his federal sentence on the passage of the Fair Sentencing Act of 2010, Pub. L. No. 111-220, Stat. 1789 (2010) (hereinafter referred to as "FSA"), which was signed into law on August 3, 2010. Petitioner contends that the enactment of the FSA renders him "actually innocent" of his conviction based on the enhancement provisions of 21 U.S.C. § 841(b)(1)(A).
As noted by the Court of Appeals for the Third Circuit in In re Dorsainvil, 119 F.3d 245, 249 (3d Cir. 1997), Section 2255 has been the "usual avenue" for federal prisoners seeking to challenge the legality of their confinement. See also Chambers v. United States, 106 F.3d 472, 474 (2d Cir. 1997); Wright v. United States Bd. of Parole, 557 F.2d 74, 77 (6th Cir. 1977); United States v. Walker, 980 F.Supp. 144, 145-46 (E.D. Pa. 1997) (challenges to a sentence as imposed should be brought under § 2255, while challenges to the manner in which a sentence is executed ...