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Garries v. Young

United States District Court, D. New Jersey

October 4, 2019

CORY A. GARRIES, Petitioner,
WARDEN S. YOUNG, Respondent.

          Cory A. Garries, Fairton Petitioner Pro se

          Anne B. Taylor, Esq. John Andrew Ruymann, Esq. Office of the U.S. Attorney Counsel for Respondent


          NOEL L. HILLMAN, U.S.D.J.

         Petitioner Cory A. Garries, 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 his conviction on the ground that he is actually innocent, citing newly discovered evidence that is attached to the Petition. 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. 8. Petitioner has filed no opposition to the Motion to Dismiss. The Motion is now ripe for disposition. For the reasons that follow, the Court will grant the Motion but transfer the Petition to the U.S. District Court for the Eastern District of North Carolina, Petitioner's sentencing court, for consideration as to whether it may be brought there pursuant to 28 U.S.C. § 2255(f)(4) based on newly discovered evidence.[1]

         I. BACKGROUND

         Petitioner pled guilty in 2006 to a criminal information charging him with sexual abuse. See United States v. Garries, 271 Fed.Appx. 322 (4th Cir. 2008); see also No. 06-cr-9, ECF No. 32 (minute entry), 34 (plea agreement) (E.D. N.C. ). He is presently serving a twenty-year sentence, imposed as a result of a four-level enhancement applied by the sentencing court. See id. After his conviction, Petitioner filed an appeal of his sentence, which was denied. See No. 06-cr-9, ECF No. 86 (mandate) (E.D. N.C. ). Petitioner's projected release date via good conduct time release is June 25, 2023. See ECF No. 8-1.

         In the Petition, Petitioner contends that recently discovered evidence as well as interviews conducted by an investigator during the course of his prosecution establish that he is actually innocent of the charged crimes. ECF No. 1. Petitioner, relying on 28 U.S.C. § 2241, seeks to vacate his conviction due to this newly discovered evidence showing that he is factually innocent of his crime. Specifically, Petitioner includes with the Petition a notarized statement dated February 5, 2018, by Joshua Leiger, the ex-husband of the woman whom Plaintiff pled guilty to sexually assaulting. Id. Petitioner also contends that the extent of available evidence showing his factual innocence, much of which exists in the form of statements and interviews gathered by an investigator during the pendency of Petitioner's criminal proceeding and also attached to his Petition, and his attorney's failure to rely upon that evidence, demonstrate that he did not received effective assistance of counsel. Id. Petitioner seeks to have these claims of factual innocence and ineffective assistance of counsel heard pursuant to 28 U.S.C. § 2241. See id.

         Since filing the instant Petition in December 2018, Petitioner has also filed a motion pursuant to 28 U.S.C. § 2255 in his sentencing court. See No. 06-cr-9, ECF No. 93 (E.D. N.C. ). No answer has been filed yet in that proceeding.


         A. Legal Standard Title 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 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. See Hunterson 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 not entitled to relief. See Denny v. Schult, 708 F.3d 140, 148 n.3 (3d Cir. 2013); see also 28 U.S.C. §§ 2243, 2241, 2254.

         B. Analysis

         As noted by the Court of Appeals for the Third Circuit in In re Dorsainvil, 119 F.3d 245, 249 (3d Cir. 1997), a motion to vacate, set aside, or correct sentence under 28 U.S.C. § 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); United States v. McKeithan, 437 Fed.Appx. 148, 150 (3d Cir. 2011); United States v. Walker, 980 F.Supp. 144, 145-46 (E.D. Pa. 1997) (challenges to a sentence as ...

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