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Berry v. Warden, FCI Fairton

United States District Court, D. New Jersey

October 23, 2019

GREGORY MACDONALD BERRY, Petitioner,
v.
WARDEN, FCI FAIRTON, Respondent.

          Gregory MacDonald Berry, Petitioner Pro se

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

          OPINION

          NOEL L. HILLMAN, U.S.D.J.

         Petitioner Gregory MacDonald Berry, a prisoner presently confined at the Federal Correctional Institution (“FCI”) at Fairton in Fairton, New Jersey, filed this Amended Petition for Writ of Habeas Corpus under 28 U.S.C. § 2241, asserting that “the execution of [his] sentence was unlawfully imposed.” ECF No. 4. Respondent filed a Motion to Dismiss the Amended Petition in which he argues that the Amended Petition should be dismissed for lack of jurisdiction. ECF No. 15. Petitioner an opposition to the Motion. ECF No. 16. Petitioner has also filed a Motion to Stay the disposition of his Amended Petition pending further supplemental briefing from himself, and he has now filed that supplemental briefing. See ECF Nos. 17, 18.[1] The Motion is thus ripe for disposition. For the reasons that follow, the Court will grant the Motion to Dismiss and dismiss the Petition for lack of jurisdiction.

         I. BACKGROUND

         Petitioner is an inmate at FCI Fairton where he is currently serving a 420-month sentence for transportation of child pornography in violation of 18 U.S.C. § 2252A(a)(1), (b)(1) and possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B), (b)(2). No. 2:09-cr-831, ECF No. 372 (C.D. Cal.). Petitioner was convicted of these crimes by jury in the U.S. District Court for the Central District of California. See Id. During Petitioner's criminal proceedings, Petitioner made numerous attempts to represent himself between September 14, 2009 and April 22, 2010, which the Central District of California found to be equivocal and denied. No. 2:09-cr-831, ECF No. 537 at 1 (C.D. Cal.). That court, however, found Petitioner's request made on April 22, 2010, to be unequivocal and permitted him to proceed pro se, after which Petitioner was then convicted on all counts by jury and sentenced to 420 months' imprisonment. See id.

         Petitioner first challenged his conviction through direct appeal. See No. 2:09-cr-831, ECF No. 374 (notice of appeal) (C.D. Cal.); see also United States v. Berry, 554 Fed.Appx. 574 (9th Cir. 2014) (direct appeal). On appeal, Petitioner argued that he should not have been permitted to represent himself on and after April 22, 2010, because his request was equivocal. See Berry, 554 Fed.Appx. at 575. The Court of Appeals for the Ninth Circuit denied his appeal. Id.

         Petitioner then challenged his conviction by collateral attack pursuant to 28 U.S.C. § 2255. See No. 2:09-cr-831, ECF No. 508 (§ 2255 motion) (C.D. Cal.). In his § 2255 motion, Petitioner argued that the Central District of California erred in failing to grant him pro se status when he requested to proceed pro se during the time period of September 14, 2009, until April 22, 2010, and that, during this time, his counsel was ineffective. See No. 2:09-cr-831, ECF No. 537 (denial of § 2255 motion) (C.D. Cal.). Petitioner's § 2255 motion was also denied. See id.

         This Court received Petitioner's Amended Petition pursuant to § 2241 on December 18, 2018. See ECF No. 4. In his Amended Petition, Petitioner raises similar arguments to his § 2255 motion and seeks relief from his conviction pursuant to 28 U.S.C. § 2241, because he was not permitted to proceed pro se in a timely manner during his criminal prosecution, as a result of which he alleges he was prejudiced because his appointed counsel failed to properly represent him. See Id.

         II. DISCUSSION

         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 ...


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