United States District Court, D. New Jersey
Nicholas Fatiga Petitioner Pro se
Andrew Ruymann, Esq. John Tudor Stinson, Jr., Esq. Office of
the U.S. Attorney Counsel for Respondent
L. HILLMAN, U.S.D.J.
Nicholas Fatiga, a prisoner presently confined at the Federal
Correctional Institution (“FCI”) at Fairton in
Fairton, New Jersey, filed this Petition for Writ of Habeas
Corpus under 28 U.S.C. § 2241, challenging the validity
of his sentence. ECF No. 1. Respondent filed a Motion to
Dismiss the Petition in which he argues that the Petition
should be dismissed for lack of jurisdiction. ECF No. 9.
Petitioner filed an opposition to the Motion, ECF No. 11, and
Respondent filed a reply, ECF No. 11. The Motion is now ripe
for disposition. For the reasons that follow, the Court will
grant the Motion and dismiss the Petition for lack of
14, 2010, Petitioner was charged in a second superseding
indictment for participating in a conspiracy to distribute
cocaine. See No. 10-cr-52, ECF No. 103 (E.D. Pa.).
On February 24, 2011, pursuant to a plea agreement,
Petitioner pled guilty to conspiracy to distribute five
kilograms of cocaine in violation of 21 U.S.C. § 846.
See id., ECF No. 448.
sentencing hearing was held on June 26, 2012. Id.
Pursuant to Section 2D1.1(a) of the 2009 Sentencing
Guidelines, Petitioner had an initial base offense level of
thirty-two (32) for an offense involving more than five but
less than ten kilograms of cocaine. Id. at 2. The
sentencing court determined that Petitioner qualified as a
“career offender” under U.S.S.G. § 4B1.1
because of prior drug trafficking offenses, which increased
the offense level to a thirty-seven (37). The sentencing
court then reduced the offense level by three “for
being a minimal participant in the crime activity” and
by an additional three for acceptance of responsibility,
“resulting in a total offense level of thirty-one
(31).” Id. As a career offender under the
Guidelines, Petitioner received a criminal history category
of VI, which, with his offense level, carried an advisory
sentencing range under the applicable Guidelines of 180 to
235 months' imprisonment. Id.
sentencing court then granted the Government's motion for
a downward departure, which further reduced Petitioner's
offense level to twenty-seven (27). Id. The
sentencing court concluded that, under the Guidelines,
Petitioner's advisory range would be 132 to 162
months' imprisonment. Id. at 2-3. After
considering the advisory range and other relevant factors,
the sentencing court sentenced Petitioner to 162 months of
imprisonment. Id. Petitioner did not challenge his
sentence on direct appeal or through a motion pursuant to 28
U.S.C. § 2255.
August 25, 2017, Petitioner filed a pro se motion to
modify sentence pursuant to 18 U.S.C. § 3582(c)(2).
Id., ECF Nos. 439 (motion), 440 (supplement), 445
(additional supplement). Petitioner sought to reduce his
sentence to a range between 110 to 137 months based on
Amendment 782 of the Guidelines. Id., ECF No. 448 at
3. On May 30, 2018, the sentencing court denied the motion on
grounds that the Amendment did not affect Petitioner's
applicable sentencing range. Id.
then filed the instant Petition for Writ of Habeas Corpus
under 28 U.S.C. § 2241 in this Court on January 30,
2019. No. 19-cv-1934, ECF No. 1 (D.N.J.). In the Petition, he
argues that he should not have been designated as a career
offender under the Guidelines at sentencing. Specifically, he
relies on two Supreme Court cases, Descamps v. United
States, 570 U.S. 254 (2013), and Mathis v. United
States, 136 S.Ct. 2243 (2016), to support his theory
that his prior convictions “do not qualify him as a
career offender” and that he is entitled to
resentencing without the career offender enhancement. ECF No.
1 at 7-8.
28, Section 2243 of the United States Code 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