United States District Court, D. New Jersey
Gregory MacDonald Berry, 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.
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. 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.
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.
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
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.
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.
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 ...