United States District Court, D. New Jersey
B. SIMANDLE UNITED STATES DISTRICT JUDGE
Frankie Gonzalez (“Gonzalez” or
“Petitioner”) was convicted on November 7, 1996
of conspiracy to violate the RICO Act in violation of 18
U.S.C. § 1962(d) and conspiracy to distribute heroin in
violation of 21 U.S.C. § 846. On March 18, 1997, the
Honorable Maryanne T. Barry, then of the U.S. District Court
for the District of New Jersey, sentenced Gonzalez to two
concurrent life terms imprisonment. Gonzalez seeks to vacate,
set aside, and correct his sentence pursuant to 28 U.S.C.
§ 2255, asserting that he is “actually
innocent” of his 18 U.S.C. § 1962(d) RICO
Conspiracy and 21 U.S.C. § 846 convictions in light of
the U.S. Supreme Court cases of Rosemond v. United
States, 134 S.Ct. 1240 (2014) and Montgomery v.
Louisiana, 136 S.Ct. 718 (2016).
before the Court are Respondent J. Baltazar's
(“Respondent”) motion to dismiss the § 2255
petition [Docket Item 21] and Gonzalez's motion to
transfer the § 2255 petition to the U.S. District Court
for the Western District of Louisiana, where he is presently
confined. [Docket Item 27.] For the reasons explained below,
the Court will grant Respondent's motion to dismiss and
deny Gonzalez's motion to transfer as moot. The Court
finds as follows:
Factual and Procedural Background.
a four-week trial, on November 7, 1996, a jury found Gonzalez
guilty of conspiracy to violate the RICO Act in violation of
18 U.S.C. § 1962(d) and conspiracy to distribute heroin
in violation of 21 U.S.C. § 846. See United States
v. Gonzalez, No. 96-cr-114-3 (D.N.J.). On March 18,
1997, Judge Barry sentenced Gonzalez to two concurrent life
terms for the following reasons: “At the top level of a
major heroin distribution organization since its inception in
1992. An organization which employed guns and violence and
had a government informant murdered. A plan which defendant
knew. Defendant participated in all aspects of the
organization and, for a significant period of time, was its
organizer and leader.” United States v.
Gonzalez, 401 Fed.Appx. 727, 728 n.1 (3d Cir. 2010)
(citing District Court's Judgment). Gonzalez filed a
notice of appeal on April 9, 1997, see United States v.
Gonzalez, App. No. 97-5168 (3d Cir.), which the Third
Circuit denied in a memorandum opinion dated March 13, 1998,
and the U.S. Supreme Court denied certiorari review on
November 30, 1998.
December 13, 1999, Gonzalez filed his first habeas petition
pursuant to 28 U.S.C. § 2255 in the U.S. District Court
for the District of New Jersey. See Gonzalez v. United
States, No. 99-5800-JWB (D.N.J.). The Honorable John W.
Bissell denied the petition as untimely because it was filed
more than one year after the Supreme Court had denied
certiorari. Chief Judge Bissell subsequently denied the
issuance of a certificate of appealability, and the Third
Circuit likewise denied Gonzalez's request for a
certificate of appealability. See Gonzalez v. United
States, App. No. 00-3545 (3d Cir.).
April 25, 2017, Gonzalez filed a habeas petition pursuant to
28 U.S.C. § 2241 in the Middle District of Pennsylvania,
see Gonzalez v. Baltazar, No. 17-759 (M.D. Pa.),
where he was then incarcerated. On May 17, 2017, the
Honorable Robert D. Mariani dismissed the petition without
prejudice for lack of jurisdiction because Gonzalez had not
shown that the remedies available under 28 U.S.C. § 2255
were inadequate or ineffective. See Gonzalez v.
Baltazar, 2017 WL 2175804, at *2-4 (M.D. Pa. May 17,
June 7, 2017, Gonzalez filed the pending habeas petition
pursuant to 28 U.S.C. § 2255 in the U.S. District Court
for the District of New Jersey. [Docket Item 1.] In the
petition itself, Gonzalez raised one ground on which he
claims he is being held in violation of the Constitution,
laws, or treaties of the United States, explicitly
incorporating by reference the same ground for relief raised
in his § 2241 petition in the Middle District of
Pennsylvania [Docket Item 1 at 4], namely that he is
“actually innocent” of his 18 U.S.C. §
1962(d) RICO Conspiracy and 21 U.S.C. § 846 convictions
in light of the U.S. Supreme Court's decision in
Rosemond v. United States, 134 S.Ct. 1240 (2014).
[See Docket Item 1-3 at 16.] Gonzalez subsequently
filed a “Request to Supplement Ground Two to
Petitioner's § 2255(e) ‘Savings Clause'
§ 2241 Writ of Habeas Corpus Pursuant to Fed.R.Civ.P.
Rule 15(d), ” wherein he additionally requests relief
pursuant to the U.S. Supreme Court case of Montgomery v.
Louisiana, 136 S.Ct. 718 (2016). [Docket Item 3.]
June 29, 2017, the Court ordered Respondent to file an Answer
in response to Gonzalez's § 2255 petition. [Docket
Item 2.] The Court subsequently granted Respondent several
extensions of time [Docket Items 9, 13, 16, and 20] and, on
July 12, 2018, Respondent filed a motion to dismiss
Gonzalez's § 2255 petition. [Docket Item 21.] In
this motion, Respondent argues, inter alia, that
Gonzalez's § 2255 petition should be dismissed for
three reasons: (1) the Court lacks jurisdiction over
Gonzalez's “successive” § 2255 petition
under the Anti-Terrorism and Effective Death Penalty Act of
1996 (“AEDPA”); (2) Gonzalez's § 2255
petition is untimely; and (3) if the Court construes the
instant petition under 28 U.S.C. § 2241, this Court
lacks jurisdiction because Gonzalez is not presently
incarcerated in the District of New Jersey. [See
generally Docket Item 21-1 (hereinafter, “MTD
Br.”).] Gonzalez filed opposition to Respondent's
motion to dismiss [Docket Item 24], as well as a motion to
transfer his habeas petition to the Western District of
Louisiana [Docket Item 27], the jurisdiction and District in
which he is presently confined.
Discussion of Law.
the 1948 revision of the Judicial Code and AEDPA, Congress
has restricted a prisoner's access to habeas
proceedings. The Court reviews the law relevant to the
Gonzalez's attempted collateral challenge and explains
why his petition must be dismissed in turn below.
Congress has designated § 2255 as the presumptive and
primary statutory vehicle for any habeas claim challenging a
conviction or sentence. See Okereke v. United
States, 307 F.3d 117, 120 (3d Cir. 2002), cert.
denied, 537 U.S. 1038 (2002); United States v.
Miller, 197 F.3d 644, 648 n.2 (3d Cir. 1999); In re
Dorsainvil, 119 F.3d 245, 249 (3d Cir. 1997).
Conversely, Congress expressly prohibited district courts
from hearing habeas claims challenging a sentence under the
authority of § 2241 in the majority of circumstances.
See 28 U.S.C. § 2255(e); see also United
States v. Walker, 980 F.Supp. 144, 145-46 (E.D. Pa.
1997) (collateral challenge to sentence should be brought
under § 2255, while challenge to the manner in which the
sentence is imposed should be brought under § 2241).
Through AEDPA, Congress also imposed a stringent gatekeeping
provision which limited a prisoner's ability to file
“second” or “successive” § 2255
habeas petitions. See 28 U.S.C. §§
2244(a), 2255. That is, before a successive § 2255
petition can be heard by the sentencing court, the petition
must be certified by the Court of Appeals as containing:
(1) newly discovered evidence that, if proven and viewed in
light of the evidence as a whole, would be sufficient to
establish by clear and convincing evidence that no reasonable
factfinder would ...