United States District Court, D. New Jersey
DAVID M. ROBINSON, Petitioner,
DAVID ORTIZ, Respondent.
B. KUGLER UNITED STATES DISTRICT JUDGE.
is a federal prisoner currently incarcerated at F.C.I. Fort
Dix in Fort Dix, New Jersey. He is proceeding pro se
with a petition for writ of habeas corpus pursuant to 28
U.S.C. § 2241. For the reasons that follow, the Court
will dismiss the habeas petition for lack of jurisdiction.
2008, Petitioner pled guilty to twenty-eight counts of
violations of the mail and wire fraud statutes in the United
States District Court for the District of Maryland. (ECF No.
1 at p. 2). Petitioner was sentenced to 188 months'
imprisonment, which was affirmed on direct appeal. (See
Id. at p. 3). Thereafter, Petitioner filed several
post-judgment motions and § 2255 habeas petitions, all
of which were denied by the District Court of Maryland and
the Fourth Circuit Court of Appeals. (See Id. at pp.
has now filed a habeas petition pursuant to 28 U.S.C. §
2241 (the “Petition”) in this Court. In the
Petition, Petitioner argues that his indictment failed to
explicitly allege any facts to prove any of the essential
elements of the mail and wire fraud offenses and as a result,
his conviction must be reversed. (See Id. at pp.
5-8). Additionally, Petitioner contends that the district
court did not have subject matter jurisdiction to prosecute
him. (See Id. at pp. 8-9). Finally, Petitioner
argues that his trial counsel misadvised him at both his plea
hearing and his sentencing. (See Id. at pp. 9-12).
Petitioner requests that this Court dismiss his invalid
guilty plea, vacate his conviction, and release him
immediately. (See Id. at p. 13).
STANDARD OF REVIEW
corpus petitions must meet heightened pleading
requirements.” McFarland v. Scott, 512 U.S.
849, 856 (1994). A petition must “specify all the
grounds for relief” and set forth “facts
supporting each of the grounds thus specified.” 28
U.S.C. § 2254 Rule 2(c) (amended Dec. 1, 2004),
applicable to § 2241 petitions through Habeas Rule 1(b).
A court presented with a petition for writ of habeas corpus
“shall forthwith award the writ or issue an 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 there.” 28
U .S.C. § 2243. Thus, “[f]ederal courts are
authorized to dismiss summarily any habeas petition that
appears legally insufficient on its face.”
McFarland, 512 U.S. at 856; see also United
States v. Thomas, 221 F.3d 430, 437 (3d Cir. 2000);
Siers v. Ryan, 773 F.2d 37, 45 (3d Cir. 1985).
“[A] district court is authorized to dismiss a [habeas]
petition summarily when it plainly appears from the face of
the petition and any exhibits annexed to it that the
petitioner is not entitled to relief in the district
court[.]” Lonchar v. Thomas, 517 U.S. 314, 320
has filed his habeas petition under 28 U.S.C. § 2241.
However, as noted by the Court of Appeals for the Third
Circuit in In re Dorsainvil, 119 F.3d 245, 249 (3d
Cir. 1997), Section 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); Cardona v.
Bledsoe, 681 F.3d 533, 535 (3d Cir. 2012) (“§
2255. . . confers jurisdiction over challenges to the
validity of the petitioner's sentence, [while] . . .
§ 2241 confers habeas jurisdiction to hear the petition
of a federal prisoner who is challenging not the validity but
the execution of his sentence.”) Motions under §
2255 must be brought before the court which imposed the
sentence. See 28 U.S.C. § 2255. In addition, a
one-year limitations period applies to § 2255 motions.
See 28 U.S.C. § 2255(f).
2255 does, however, contain a safety valve that may help a
prisoner overcome the timeliness and successive petition bars
where “it appears that the remedy by motion is
inadequate or ineffective to test the legality of
[Petitioner's] detention.” 28 U.S.C. § 2255.
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.” 119
F.3d at 251. The court emphasized, however, that its holding
was not intended to suggest that a § 2255 remedy would
be considered “inadequate or ineffective” merely
because a petitioner is unable to meet the stringent
gatekeeping requirements of § 2255. Id. Rather,
the court was persuaded that § 2255 was
“inadequate or ineffective” in the unusual
circumstances presented in Dorsainvil because it
would have been a complete miscarriage of justice to confine
a prisoner for conduct that, based upon an intervening
interpretation of the statute of conviction by the United
States Supreme Court, may not have been criminal conduct at
all. Id. at 251-52.
Cradle v. U.S. ex rel. Miner, 290 F.3d 536 (3d Cir.
2002), the Third Circuit emphasized the narrowness of the
“inadequate or ineffective” exemption. A §
2255 motion is “inadequate or ineffective, ”
authorizing resort to § 2241, “only where the
petitioner demonstrates that some limitation of scope or
procedure would prevent a § 2255 proceeding from
affording him a full hearing and adjudication of his wrongful
detention claim.” Cradle, 290 F.3d at 538;
see also Massey v. U.S., 581 F.3d 172, 174 (3d Cir.
2009). “It is the inefficacy of the remedy, not the
personal inability to use it, that is determinative.”
Cradle, 290 F.3d at 538. The Third Circuit further
held that “Section 2255 is not inadequate or
ineffective merely because the sentencing court does not
grant relief, the one-year statute of limitations has
expired, or the petitioner is unable to meet the stringent
gatekeeping requirements of the amended § 2255. The
provision exists to ensure that petitioners have a fair
opportunity to seek collateral relief, not to enable them to
evade procedural requirements.” Id. at 539
(internal citations omitted).
under Dorsainvil and its progeny, this Court would
have jurisdiction over Petitioner's petition if, and only
if, Petitioner demonstrates: (1) his “actual innocence,
” (2) as a result of a retroactive change in
substantive law that negates the criminality of his conduct,
(3) for which he had no other opportunity to seek judicial
review. See Okereke, 307 F.3d at 120,
Cradle, 290 F.3d at 539, Dorsainvil, 119
F.3d at 251-52.
Petitioner does not allege facts sufficient to bring his
conviction within the Dorsainvil exception.
Petitioner does not allege that he is “actually
innocent” as a result of a retroactive change in
substantive law that negates the criminality of his conduct.
Rather, he is challenging the sufficiency of the indictment
and the subject matter jurisdiction of the sentencing court.
Petitioner has not demonstrated that his circumstances
constitute the sort of “complete miscarriage of
justice” that would justify application of the
safety-valve language of § 2255 rather than its
gatekeeping requirements. Accordingly, since the
Dorsainvil exception does not apply here, this Court
lacks jurisdiction to entertain this challenge to
a civil action is filed in a court that lacks jurisdiction,
“the court shall, if it is in the interest of justice,
transfer such action ... to any other such court in which the
action ... could have been brought at the time it was
filed.” 28 U.S.C. § 1631. Since Petitioner has
already pursued a motion under § 2255, he must seek
authorization from the Fourth Circuit to file a second or
successive petition. 28 U.S.C. § 2244(b)(3). The Court
finds that it is not in the interests of justice to transfer
this habeas petition to the Fourth Circuit as it does not
appear Petitioner can satisfy the ...