RENÉE MARIE BUMB, District Judge.
This matter comes before the Court upon Respondent's answer to the § 2241 application ("Petition") filed by Francisco Munoz-Valdez ("Petitioner"). See Docket Entries Nos. 1 and 8.
Petitioner's current custodial sentence ensued from his in drug trafficking activities. Specifically, in November 2004, Petitioner was conducting his drug trafficking operations on a boat situated somewhere between 160 to 173 miles off the coast of Columbia. See Docket Entry No. 1, at 12. That conduct was the basis for his prosecution and conviction in the United States. See id.; see also Docket Entry No, 8, at 8. Petitioner pled guilty and stated on the record that his activities at issue took place while he was on the boat "in international waters [of] the Carribean basin." See id. Petitioner's presentence report expressly stated that he was 173 nautical miles off the coast of Columbia; that statement largely corresponding to the factual position Petitioner asserted in the instant matter. See Docket Entry No. 8-5, at 4; accord Docket Entry No. 1 (reflecting Petitioner's claim that he was 160 nautical miles off the Columbian coast when he conducted his illegal activities). He was sentenced to 135 months of imprisonment.
Petitioner now challenges his conviction alleging that his underlying conduct falls outside the reach of the United States criminal jurisdiction. In support of the same, he relies on United States v. Bellaizac-Hurtado , 700 F.3d 1245 (11th Cir. 2012), an Eleventh Circuit decision interpreting the Maritime Drug Law Enforcement Act ("MDLEA"), 94 Stat. 1159, 46 U.S.C. App. § 1901 et seq. and holding that the United States penal jurisdiction cannot be based on drug trafficking activities taking place in foreign territorial waters.
As this Court already pointed out in its prior decision, Congress established a procedure whereby a federal prisoner might collaterally attack his sentence in the sentencing court by means of a 28 U.S.C. § 2255 motion. See Davis v. United States , 417 U.S. 333, 343-44 (1974); United States v. Hayman , 342 U.S. 205, 219 (1952). "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), and resort to § 2241 is jurisdictionally barred unless the litigant establishes that § 2255 is a vehicle "inadequate or ineffective" to test the legality of his/her detention. See Cradle v. Miner , 290 F.3d 536 (3d Cir. 2002); In re Dorsainvil , 119 F.3d 245, 251 (3d Cir. 1997).
The Court of Appeals in Dorsainvil addressed a scenario where § 2255 was "inadequate or ineffective" and, thus, permitted resort to § 2241: there, the Court examined challenged raised by a prisoner whose underlying conduct became no a criminal offense in light of an intervening interpretation of the relevant criminal provision by the United States Supreme Court. See Dorsainvil , 119 F.3d at 251-52. The Dorsainvil exception is, however, narrow construed and, paramount here, inapplicable to the case at bar because the Eleventh Circuit's ruling in Bellaizac-Hurtado did not transform Petitioner's conduct on high seas into a non-criminal activity. Indeed, by now, there is an abundance of case law so holding. See Santos v. Hollingsworth, 2013 U.S. Dist. LEXIS 74917 (May 29, 2013 (D.N.J. May 29, 2013); Landaverde v. Hollingsworth, 2013 U.S. Dist. LEXIS 72214 (D.N.J. May 21, 2013); Sanders v. Hollingsworth, 2013 U.S. Dist. LEXIS 52843 (D.N.J. Apr. 12, 2013); Guerrero v. Hollingsworth, 2013 U.S. Dist. LEXIS 52170 (D.N.J. Apr. 11, 2013); Pandales v. Hollingsworth, 2013 U.S. Dist. LEXIS 22011 (D.N.J. Feb. 15, 2013); Paredes v. Hollingsworth, 2013 U.S. Dist. LEXIS 14563 (D.N.J. Jan. 30, 2013); Ortiz-Dominguez v. Hollingsworth, 2013 U.S. Dist. LEXIS 5605 (D.N.J. Jan. 11, 2013).
Since Petitioner's challenges could have been raised by a timely Section 2255 motion, § 2255 is not an "inadequate or ineffective" vehicle to attack his conviction. Hence, the Court will dismiss the Petition for lack of § 2241 jurisdiction, noting that Bellaizac-Hurtado is inapposite to the case at bar.
Two additional observations appear warranted.
First, the Court notes that a judicial decision (finding that the underlying conduct is not a criminal offense) supplies this Court with § 2241 jurisdiction if that decision is rendered by the United States Supreme Court or, perhaps, the Court of Appeals for the Third Circuit. Cf. 28 U.S.C. § 2255(f) (re-triggering the limitations period for the purposes of collateral review when the "right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review"); see also In re Davenport , 147 F.3d 605, 611-12 (7th Cir. 1998) ("We add [some] qualifications, the first [of which is] obvious and the [other] less so. The first is that the change of law has to have been made retroactive by the Supreme Court , as the [Supreme] Court.... [The less obvious point is that a true] change in law' is not to be equated to a difference between the law in the circuit in which the prisoner was sentenced and the law in the circuit in which he is incarcerated ") (emphasis supplied); accord Ortiz-Dominguez v. Hollingsworth, 2013 U.S. Dist. LEXIS 5605, at *15, n. 7 ("[A]bsent Supreme Court finding of non-criminality of a particular conduct (or, at the very least, absent a binding Third Circuit precedent), a determination rendered by any other court (or a determination not applicable on collateral review) would render this Court's resort to the Dorsainvil exception a violation of both the spirit and letter of § 2255 gatekeeping requirement: the jurisdictional determination of Section 2241 would be up for grabs, ' being dependent on the latest decision rendered by one of inferior federal courts").
Second, this Court notes the unlikelihood of the Third Circuit's adoption of the holding of Bellaizac-Hurtado.
In Bellaizac-Hurtado, the U.S. Coast Guard, conducting a routine locally-authorized patrol of Panamanian waters and observing a vessel operating without lights or flag, informed the local authorities of that vessel. The local navy pursued the vessel until its occupants abandoned it and fled into a jungle; they were caught by the local law enforcement. The local navy searched the vessel and discovered approximately 760 kilograms of cocaine. Panama consented to extradition to and prosecution of the detained suspects in the United States. A federal grand jury indicted them, prompting them to assert lack of the prosecuting court's jurisdiction and unconstitutionality of the MDLEA, as applied. Having their motion to that effect denied, they conditionally pled guilty, while simultaneously raising their aforesaid jurisdictional argument on appeal. The government responded by arguing that drug trafficking was an offence against the Law of Nations, but the Eleventh Circuit, after examining that argument under international customary law, disagreed.
Ortiz-Dominguez, 2013 U.S. Dist. LEXIS 5605, at *3-4, n.1.
The validity of the Eleventh Circuit position is uncertain. In Murray v. The Schooner Charming Betsy , 6. U.S. 64 (1804), Chief Justice John Marshall cautioned that "an act of Congress ought never be construed to violate the law of nations, if any other possible construction remains." Id. at 118; see also The Paquete Habana , 175 U.S. 677, 700 (1900). Almost a century later, the Court of Appeals for the First Circuit examined the MDLEA under that very principle. See United States v. Cardales , 168 F.3d 548, 553 (1999). There, the First Circuit considered a scenario where the defendants were prosecuted for violations of the MDLEA after their Venezuelan-flagged vessel was searched by the United States Coast Guard officers who, upon obtaining consent from the Venezuela government, found evidence of illegal drug trafficking. See id. The First Circuit noted that Venezuela expressly authorized the defendants' arrest and application of the United States penal law. See id. at 552. Affirming the reach of the MDLEA to the defendants, the First Circuit stressed that "due process [did] not require the government to prove a nexus between a defendant's criminal conduct and the United States under the MDLEA when the flag nation has consented to the application of United States law to the defendants"; rather, all what was needed "to satisfy due process, [was to ensure that] the MDLEA [would] not be [applied] arbitrary or [in a fashion which is] fundamentally unfair." Id. at 553 (pointing out that the territorial sovereignty of a foreign nation cannot possibly be violated by the actions of the United States where that nation expressly agreed to allow application of the United States law, and this umbrella principle had no exception in cases based on illegal drug trafficking); accord United States v. Nueci-Peña, 711 F.3d 191, 197 (1st Cir. 2013) (reciting that the MDLEA did not require a nexus between a defendant's conduct and the United States).
While the circumstances addressed by the Third Circuit in Martinez-Hidalgo and by the First Circuit in Nueci-Peña and Cardales involved drug trafficking on high seas, it appears that the MDLEA construction utilized in those matters is likely to be applied by these circuit courts in a matter presenting a scenario examined in Bellaizac-Hurtado (where the in-territorial-waters search of the vessel and the defendant's arrest were performed by the local authorities who extradited the defendant for the very purpose of United States criminal prosecution) or where the search and seizure, as well as the defendant's physical delivery upon the United States soil was performed with express consent of the nation that had sovereignty over the territorial waters and fostered criminal prosecution of the defendant in the United States. Accord Ortiz-Dominguez, 2013 U.S. Dist. LEXIS 5605, at *16, n.8 ("UNCLOS authorize states, including United States, Panama, Guatemala, etc., to arrest ...