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Ashe v. Ortiz

United States District Court, D. New Jersey

October 27, 2017

KENNETH ASHE, Petitioner,
v.
WARDEN DAVID ORTIZ, Respondent.

          Kenneth Ashe, Jean Carter, Petitioner Pro se.

          OPINION

          NOEL L. HILLMAN, U.S.D.J.

         Petitioner 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.

         At this 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 dismissed.

         I. BACKGROUND

         On 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. 2016).

         Petitioner 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 case. (Id.)

         II. DISCUSSION

         A. Legal Standard

         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 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, 2255.

         B. Analysis

         As 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 ...


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