United States District Court, D. New Jersey
CORY A. GARRIES, Petitioner,
WARDEN S. YOUNG, Respondent.
A. Garries, Fairton Petitioner Pro se
B. Taylor, Esq. John Andrew Ruymann, Esq. Office of the U.S.
Attorney Counsel for Respondent
L. HILLMAN, U.S.D.J.
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.
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.
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
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.
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
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.
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 ...