United States District Court, D. New Jersey
MATTHEW ALEXANDER NICOLL PRO SE
L. HILLMAN, U.S.D.J.
Matthew Alexander Nicoll, a prisoner confined at the Federal
Correctional Institution (“FCI”) in Fort Dix, New
Jersey, filed this writ of habeas corpus under 28 U.S.C.
§ 2241, challenging the validity of his
sentence. ECF No. 1. 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.
27, 2012, the United States District Court for the Eastern
District of Virginia sentenced Petitioner to 170 months'
imprisonment for distribution of images of minors engaged in
sexually explicit conduct in violation of 18 U.S.C. §
2252(a)(2) pursuant to a plea agreement. See E.D.
Va. No. 12-cr-10, ECF Nos. 14 (plea agreement), 24
(sentencing transcript) and 25 (judgment of conviction).
Petitioner filed a Motion to Vacate, Set Aside or Correct
Sentence under 28 U.S.C. § 2255 on November 21, 2016,
ECF No. 36, and on February 24, 2017, the court construed it
as a motion to reduce sentence and entered an order denying
the petition on the merits. E.D. Va. No. 12-cr-10, ECF No.
40. In the Order, the Court noted that the amendment to the
sentencing guidelines raised by Petitioner was not
retroactive and, even if it were, that sentencing guideline
amended did not apply to Petitioner's sentence. See
August 28, 2017, Petitioner filed his Petition for Writ of
Habeas Corpus pursuant to 28 U.S.C. § 2241 and
supporting memorandum of law with this Court, requesting that
his sentence be reduced in light of amendments to the U.S.
Sentencing Guidelines §§ 2G2.1(b)(3),
2G2.2(b)(3)(B), and 2G3.1, which were amended by Amendment
801. ECF No. 1 (petition), 1-2 (memorandum of law). The
Petition is substantively identical to Petitioner's
§ 2255 Motion filed with the Eastern District of
Virginia, which was denied on the merits. Compare
E.D. Va. No. 12-cr-10, ECF No. 36, with D.N.J. No.
17-cv-6460, ECF No. 1-2.
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
pro se pleading is held to less stringent standards
than more formal pleadings drafted by lawyers. Estelle v.
Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 292, 50 L.Ed.2d
251 (1976); Haines v. Kerner, 404 U.S. 519, 520, 92
S.Ct. 594, 596, 30 L.Ed.2d 652 (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. Schult, 708 F.3d 140, 148 n.3 (3d Cir.
2013); see also 28 U.S.C. §§ 2243, 2241,
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 Okereke v. United
States, 307 F.3d 117, 120 (3d Cir. 2002); United
States v. McKeithan, 437 F. App'x 148, 150 (3d Cir.
2011); 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 should be brought
under § 2241).
2255, however, contains a safety valve where “it
appears that the remedy by motion is inadequate or
ineffective to test the legality of [Petitioner's]
detention.” See 28 U.S.C. § 2255(e). In
Dorsainvil, the Third Circuit held that the remedy
provided by § 2255 is “inadequate or ineffective,
” permitting resort to § 2241 (a statute without
timeliness or successive petition limitations), where a
prisoner who previously had filed a § 2255 motion on
other grounds “had no earlier opportunity to challenge
his conviction for a crime that an intervening change in
substantive law may negate.” Dorsainvil, 119
F.3d at 251. The court emphasized, however, that its holding
was not intended to suggest that § 2255 would be
considered “inadequate or ineffective” merely
because a petitioner is unable to meet the stringent
limitations or gatekeeping requirements of § 2255.
Id. To the contrary, the court was persuaded that
§ 2255 was “inadequate or ineffective” in
the unusual circumstances ...