United States District Court, D. New Jersey
Earl McCrea, Petitioner Pro se
Carpenito, Esq. Anne B. Taylor, Esq. Office of the U.S.
Attorney Counsel for Respondent
L. HILLMAN, U.S.D.J.
Aston Earl McCrea, a prisoner presently incarcerated at the
Federal Correctional Institution (“FCI”) at Fort
Dix in Fort Dix, New Jersey, filed this Petition for Writ of
Habeas Corpus under 28 U.S.C. § 2241, which challenges
the legality of his imprisonment. ECF No. 1. In lieu of an
answer, the Respondent filed a Motion to Dismiss the Petition
for lack of jurisdiction. ECF No. 7. The Petitioner has not
filed an opposition. For the reasons expressed below, the
Court will grant the Motion and dismiss the Petition for lack
was convicted by jury in the Western District of Virginia of
conspiracy to distribute marijuana, possession with intent to
distribute, conspiracy to commit money laundering, possession
of a firearm as a felon, and possession of a firearm in
furtherance of a drug trafficking crime. See ECF No.
1, Pet. at 1; No. 7:11-cr-89, ECF Nos. 80 (jury verdict), 108
(judgment of conviction) (W.D. Va.). Petitioner received a
one hundred and eighty (180) month sentence for these
convictions. ECF No. 1, Pet. at 1; No. 7:11-cr-89, ECF No.
108 (W.D. Va.). Petitioner filed a direct appeal to the
Fourth Circuit Court of Appeals regarding his conviction,
which was denied on July 12, 2013. See No. 12-4755,
ECF No. 52 (mandate) (4th Cir.). Petitioner did not file a
petition for writ of certiorari with the Supreme Court of the
United States as to that appeal. See generally No.
12-4755 (4th Cir.).
filed a motion pursuant to 28 U.S.C. § 2255 in his
sentencing court on July 24, 2013. See No.
7:11-cr-89, ECF No. 172 (W.D. Va.). In his § 2255
motion, Petitioner argued that his counsel was ineffective
because, inter alia, his counsel failed to argue
that Petitioner was not a career offender. Id. at 8.
While his § 2255 motion was pending, the Supreme Court
of the United States issued its opinion in Rosemond v.
United States, 134 S.Ct. 1240 (2014), on March 5, 2014.
Petitioner did not amend his § 2255 motion, file a
supplemental brief, or request leave of court to do so in
response to the Rosemond opinion. See
generally No. 7:11-cr-89 (W.D. Va.). Petitioner's
sentencing court denied his § 2255 motion on June 13,
2014. See No. 7:11-cr-89, ECF Nos. 203 (opinion),
204 (order) (W.D. Va.).
to filing the instant petition, Petitioner filed in the Court
of Appeals for the Fourth Circuit a request to file a second
and successive § 2255 motion, seeking to bring the same
two claims that are raised in the instant Petition.
See No. 17-160, ECF No. 2 (4th Cir.). That request
was denied by order dated March 27, 2017, without an opinion
or explanation for the denial. See No. 17-160, ECF
No. 8 (4th Cir.).
filed the instant Petition pursuant to 28 U.S.C. § 2241
on June 9, 2017, which was docketed on June 19, 2017. In it,
he argues that pursuant to Rosemond v. United
States, 134 S.Ct. 1240 (2014), he is actually innocent
of his firearm offenses because he never had possession of
the firearm at issue, and that he was improperly considered a
career offender by his sentencing court. See ECF No.
1, Pet. at 4-5. The instant Petition is substantially the
same as the proposed successive § 2255 motion he sought
to file by leave of the Fourth Circuit. Compare ECF
No. 1, with No. 17-160, ECF No. 2 (4th Cir.).
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 (1976); Haines v.
Kerner, 404 U.S. 519, 520 (1972).A pro se
habeas petition must be construed liberally. SeeHunterson 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 ...