United States District Court, D. New Jersey
Kenneth Ashe, Jean Carter, Petitioner Pro se.
L. HILLMAN, U.S.D.J.
Kenneth Ashe, a prisoner confined at the Federal Correctional
Institution (“FCI”) in Fort Dix, New Jersey at
the time of filing, submitted a writ of habeas corpus under
28 U.S.C. § 2241. (ECF No. 1.) Because he failed to
submit the filing fee or an in forma pauperis
application, the Court initially administratively terminated
this matter. (ECF Nos. 2, 3.) Petitioner thereafter submit
the filing fee.
time, the Court will review the Petition pursuant to Rule 4
of the Rules Governing Section 2254 Cases, (amended Dec. 1,
2004), made applicable to § 2241 petitions through Rule
1(b) of the Habeas Rules. See also 28 U.S.C. §
2243. For the reasons set forth below, the Petition will be
December 11, 2012, Petitioner and several others were
arrested for their participation in a narcotics-trafficking
operation led by Petitioner's nephew. (U.S. v.
Ashe, Crim. Action No. 12-33 (W.D. N.C. 2012).) On March
19, 2013, Petitioner pleaded guilty pursuant to a written
plea agreement to one count of conspiracy to possess with
intent to distribute crack cocaine. (Id.) The court
sentenced Petitioner to 87 months of imprisonment.
(Id.) On September 9, 2014, the Fourth Circuit
affirmed Petitioner's conviction. See United States
v. Ashe, 583 Fed.Appx. 155, 155 (4th Cir. 2014).
Petitioner thereafter filed a § 2255 petition, alleging
claims of ineffective assistance of counsel, which was denied
by the sentencing court. Ashe v. United States, No.
12-33, 2015 WL 5430847 (W.D. N.C. Sept. 15, 2015). The Fourth
Circuit declined to issue a certificate of appealability.
Ashe v. United States, 634 Fed.Appx. 397 (4th Cir.
then filed the instant § 2241 Petition. (ECF No. 1.) He
relies on “United States v. Baptiste”
and claims that his attorneys: did not file certain evidence
in his appeal; did not raise certain claims in his appeal;
tampered with evidence; and refused to withdraw from his
States Code Title 28, Section 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
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 must be construed liberally. See
Hunterson v. DiSabato, 308 F.3d 236, 243 (3d Cir.
2002). 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 Denny v. Schultz, 708 F.3d 140, 148 n. 3 (3d
Cir. 2013); see also 28 U.S.C. §§ 2243,
noted by the Court of Appeals for the Third Circuit in In
re Dorsainvil, 119 F.3d 245, 249 (3d Cir. 1997), a
motion to vacate, set aside, or correct sentence under 28
U.S.C. § 2255 has been the “usual avenue”
for federal prisoners seeking to challenge the legality of
their confinement. See also Okerekev. United
States, 307 F.3d 117, 120 (3d Cir. 2002); United
States v. McKeithan, 437 Fed.Appx. 148, 150 (3d Cir.
2011); United States v. Walker, 980 F.Supp. 144,
145-46 (E.D. Pa. 1997) (challenges to a sentence as ...