United States District Court, D. New Jersey
Sylvester Andrews, No. 46253-066 FCI Berlin P.O. Box 9000
Berlin, NH 03570 Petitioner Pro se
B. Taylor U.S. Attorney's Office 401 Market Street
Camden, N.J. 08101 Counsel for Respondent
L. HILLMAN, U.S.D.J.
Sylvester Andrews, a prisoner presently confined at the
Federal Correctional Institution at Berlin in Berlin, New
Hampshire brings this action pursuant to 28 U.S.C. §
2241 to challenge his conviction and sentence. ECF No. 1.
Respondent has moved to dismiss the Petition for lack of
jurisdiction. ECF No. 10. For the reasons that follow, the
Court will grant the Motion and dismiss the Petition without
is challenging the legality of his underlying criminal
conviction from the U.S. District Court for the Eastern
District of Pennsylvania and alleges that he is actually
innocent, his trial counsel was ineffective, and that he
should not have been classified as a career offender because
burglaries are not crimes of violence. See id. &
ECF No. 1-3 (memorandum of law)
is currently serving a 480-month sentence of imprisonment for
various drug related offenses including conspiracy,
possession with intent to distribute, and distribution of
cocaine base, as well as possession of a firearm as a felon
and possession of an unregistered firearm. No. 92-cr-671,
Dkt. No. 775 (E.D. Pa.) (judgment of conviction for Counts 1,
16, 17, 18, 19, 20, and 22). On June 23, 1993, a jury
convicted Petitioner of these crimes in the Eastern District
of Pennsylvania. See id., Dkt. No. 589 (jury
sentence was reduced in 2009 from life imprisonment to 360
months as to Counts 1, 16, 17, 19, and 22 because U.S.
Sentencing Guidelines Amendment 505 reduced his base offense
level to 38 and his Guidelines range from mandatory life
imprisonment to a range of 360 months to life. Id.,
ECF No. 1238. In 2013, his thirty-year term of imprisonment
for his second § 924(c) conviction, Count 20, was
vacated based in part on the Government's concession that
the conviction and sentence violated federal law pursuant to
Bailey v. United States, 516 U.S. 137 (1995).
Id., ECF No. 1288. Petitioner's application for
a sentence reduction pursuant to 18 U.S.C. § 3582(c)(2)
and Guidelines Amendment 782, however, was denied.
Id., ECF No. 1353.
2016, Petitioner filed a successive motion pursuant to 28
U.S.C. § 2255. Id., ECF No. 1356. In that
motion, he argued that his incarceration is unlawful because
he is not a career offender pursuant to the Supreme
Court's opinion in Johnson v. United States, 135
S.Ct. 2551 (2015). Specifically, he argued that his
Pennsylvania burglary convictions did not qualify as crimes
of violence. On November 1, 2017, the Third Circuit granted
Petitioner leave to file the successive motion pursuant to
§ 2255 on the Johnson issue. See No.
92-cr-671, ECF No. 1369.
his application for leave to file a successive § 2255
motion was pending with the Third Circuit, Petitioner filed
the instant § 2241 petition. No. 17-cv-4839, ECF No. 1.
The Respondent filed a Motion to Dismiss the Petition arguing
that the Court lacks jurisdiction over the Petition, because
his claims may only be brought pursuant to a § 2255
motion and the Court of Appeals for the Third Circuit has
granted Petitioner leave to file a successive § 2255
motion. See ECF No. 10. Petitioner filed two briefs
in opposition in which he argues that he is actually innocent
of the crimes for which he is incarcerated and that his
Petition is properly brought pursuant to § 2241. ECF
Nos. 9, 10. The Respondent did not file a reply.
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 ...