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Savage v. Hollingsworth

United States District Court, D. New Jersey

February 23, 2015

DARYL SAVAGE, Petitioner,
v.
WARDEN J. HOLLINGSWORTH, Respondent.

OPINION

ROBERT B. KUGLER, District Judge.

I. INTRODUCTION

Petitioner is a federal prisoner currently incarcerated at F.C.I. Fort Dix in Fort Dix, New Jersey. He is proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. On January 28, 2015, this Court administratively terminated this case as petitioner had neither paid the filing fee nor submitted an application to proceed in forma pauperis. Subsequently, petitioner paid the filing fee. Therefore, the Clerk will be ordered to reopen this case. For the following reasons, the habeas petition will be dismissed for lack of jurisdiction.

II. BACKGROUND

On September 29, 2004, a jury convicted Savage of one count of possession of a firearm by a convicted felon and one count of ammunition by a convicted felon in violation of 18 U.S.C. § 922(g)(1) (2000). Following his conviction, the Court sentenced Savage to concurrent terms of 180 months for the firearm and ammunition charges.
On January 3, 2006, the Fourth Circuit affirmed Savage's convictions and sentence. United States v. Savage, 161 F.Appx. 256 (4th Cir. 2006). Savage's petition for certiorari was denied. Savage v. United States, 126 S.Ct. 1930 (2006).

(Dkt. No. 1 at p. 7-8.)[1] Subsequently, petitioner filed a motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255 in the District of Maryland. Among the claims that petitioner raised in that motion was a claim that he was erroneously classified as a career criminal which in turn enhanced his sentence. The District of Maryland denied the § 2255 motion on September 6, 2007. The United States Court of Appeals for the Fourth Circuit denied a certificate of appealability on April 3, 2008. See United States v. Savage, 272 F.Appx. 244 (4th Cir. 2008).

In 2009, petitioner moved in this Court for habeas relief pursuant to 28 U.S.C. § 2241. This Court dismissed that habeas petition for lack of jurisdiction as petitioner failed to show any grounds in which § 2255 would be an inadequate or ineffective remedy to address his challenges. See Savage v. Zickefoose, No. 09-6418, 2010 WL 4366129, at *2 (D.N.J. Oct. 28, 2010). The United States Court of Appeals for the Third Circuit affirmed this dismissal on September 30, 2011. See Savage v. Zickefoose, 446 F.Appx. 524 (3d Cir. 2011) (per curiam).

In 2013, petitioner moved in the District of Maryland under Federal Rule of Civil Procedure 60(b)(6) to set aside his judgment because the charges in one of his Armed Career Criminal Act predicate convictions allegedly had been nol-prossed. The District of Maryland determined that this Rule 60(b) motion was actually a second or successive § 2255 motion. As petitioner had failed to obtain certification from the Fourth Circuit to file a second or successive § 2255 motion, the District of Maryland denied the Rule 60(b) motion. The Fourth Circuit denied a certificate of appealability and dismissed the appeal on September 30, 2014. See United States v. Savage, 584 F.Appx. 75 (4th Cir. 2014).

Petitioner then filed the instant § 2241 habeas petition in this case in January 2015. Petitioner argues that the District of Maryland erred in denying his § 2255 motion because he lacked the requisite elements for his sentence to be enhanced under the Armed Career Criminal Act. He claims that this claim was "overlooked" by the District of Maryland. He requests that this Court vacate his 180 month sentence.

III. STANDARD FOR SUA SPONTE DISMISSAL

With respect to screening the instant petition, 28 U.S.C. § 2243 provides in relevant part:

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.

As petitioner is proceeding pro se, his petition is held to less stringent standards than those pleadings drafted by lawyers. See Rainey v. Varner, 603 F.3d 189, 198 (3d Cir. 2010) ("It is the policy of the courts to give a liberal construction to pro se habeas petitions.") (internal quotation marks and citation omitted); United States v. Otero, 502 F.3d 331, 334 (3d Cir. 2007) ("we construe pro se pleadings liberally.") (citing Haines v. Kerner, 404 U.S. 519, 520 (1972)). Nevertheless, "a district court is authorized to dismiss a [habeas] petition summarily when it plainly appears from the face of the ...


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