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McCrea v. Ortiz

United States District Court, D. New Jersey

April 5, 2018

ASTON EARL McCREA, Petitioner,
v.
DAVID ORTIZ, Respondent.

          Aston Earl McCrea, Petitioner Pro se

          Craig Carpenito, Esq. Anne B. Taylor, Esq. Office of the U.S. Attorney Counsel for Respondent

          OPINION

          NOEL L. HILLMAN, U.S.D.J.

         Petitioner 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 of jurisdiction.

         I. BACKGROUND

         Petitioner 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.[1] See generally No. 12-4755 (4th Cir.).

         Petitioner 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.).

         Prior 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.).

         Petitioner 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.).

         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. 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 ...


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