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Telfair v. Ortiz

United States District Court, D. New Jersey

November 4, 2019

TOMMIE TELFAIR, Petitioner,
v.
DAVID E. ORTIZ, Respondent.

          OPINION

          Kevin McNulty United States District Judge.

         I. INTRODUCTION

         The petitioner, Tommie Telfair, is a federal prisoner proceeding pro se with a petition for a writ of habeas corpus under 28 U.S.C. § 2241. (DE 1.) Petitioner has also filed a motion for bail pending the resolution of this § 2241 petition, as well as two supplemental pleadings in support of his Petition. (DE 1-3, 3, 4.) He was sentenced by District Judge Dennis M. Cavanaugh; in connection with other post-judgment motions, the criminal case was transferred to me after Judge Cavanaugh retired. (See Crim. No. 08-757, DE 106 (Feb. 13, 2019))

         For the following reasons, I will dismiss the Petition for lack of jurisdiction and deny the motion for bail.

         II. BACKGROUND AND PLEADINGS

         In February 2010, Petitioner was convicted by a jury of conspiracy to distribute and possess with intent to distribute 1, 000 grams or more of heroin, in violation of 21 U.S.C. §§ 841(a) and 841(b)(1)(A)(I), and of distribution and possession with intent to distribute 100 grams or more of heroin, in violation of 21 U.S.C. §§ 841(a), 841(b)(1)(B), and 18 U.S.C. § 2. See Judgment of Conviction, United Stales v. Telfair, Crim. No. 08-0757 (D.N.J. Nov. 23, 2011), DE 95. Petitioner was sentenced to 240 months' imprisonment. See Id. The U.S. Court of Appeals for the Third Circuit affirmed Petitioner's conviction and sentence. See United States v. Telfair, 507 Fed.Appx. 167, 179 (3d Cir. 2012). Petitioner's request for a writ of certiorari to the United States Supreme Court was denied. See Telfair v. United States, 571 U.S. 866 (2013), rehearing denied, 511 U.S. 1105(2013).

         In October 2013, Petitioner filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. See Telfair v. United States, Civ. No. 13-6585 (D.N.J. Oct. 25, 2013), DE 1. The Honorable Susan D. Wigenton, U.S.D.J., granted Petitioner an evidentiary hearing on his Miranda[1] claim, but denied the rest. See Order, Telfair, Civ No. 13-6585 (Feb. 17, 2016), DE 37. Following the evidentiary hearing, Judge Wigenton denied Petitioner's Miranda claim as well. See Order, Telfair, Civ No. 13-6585 (Sept. 25, 2017), DE 59. The Third Circuit denied Petitioner's request for a certificate of appealability. See Order of USCA, Telfair, Civ. No. 13-6585 (June 19, 2018), DE 74. Thereafter, Petitioner filed an untimely motion for reconsideration of the denial of his § 2255, as well as a motion under Fed.R.Civ.P. 60(b), which incorporated a request for leave to file a second § 2255 motion. Both of those motions were denied. See Opinion and Order, Telfair, Civ No. 13-6585 (Nov. 18, 2018), DE 78, 79.

         In August 2016, while his § 2255 matter was still pending, Petitioner filed his first petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241, challenging his conviction and sentence. See Petition, Telfair v. United States, Civ. No. 16-5085 (D.N.J. Aug. 19, 2013), DE 1. Judge Wigenton dismissed the petition without prejudice, finding that it was essentially a second motion to vacate his sentence under § 2255 and that any new claims Petitioner raised were time- barred. See Opinion, Telfair, Civ. No. 16-5085 (Sept. 20, 2016), DE 3. Petitioner filed a motion for reconsideration, which the Court denied on December 1, 2016. See Order, Telfair, Civ. No. 16-5085 (Dec. 1, 2016), DE 7. The Third Circuit affirmed the dismissal of this § 2241 petition. See Telfair v. Attorney Gen. United States, et. al., Civ. No. 16-4417 (3d Cir. Feb. 28, 2017). The Supreme Court denied Petitioner's for a writ of certiorari. See Telfair v. Sessions, Civ. No. 16-8636 (U.S. May 15, 2017).

         In September 2016, Petitioner filed a second § 2241 petition before then-Chief Judge Jerome B. Simandle, U.S.D.J. See Telfair v. Lynch, et. al., Civ. No. 16-5372, 2017 WL 3783693, at * 1 (D.N.J. Aug. 30, 2017). Judge Simandle dismissed the petition, finding that it was duplicative of Petitioner's first § 2241 petition before Judge Wigenton. See Id. at *l-2.

         In 2017, Petitioner filed a third § 2241 petition. See Petition, Telfair v. Ortiz, Civ. No. 17-6065 (D.N.J. Jul. 11, 2017), DE 1. Petitioner argued that the District Court was not a "true" federal court and that it therefore lacked personal jurisdiction over him. See Id. Judge Wigenton found that the petition was essentially another § 2255 motion. See Order, Telfair, Civ. No. 17-6065 (Sept. 28, 2017), DE 3. Construing the petition as a § 2255 motion, Judge Wigenton determined that Petitioner's newly raised claims were time-barred. See Id. The petition was dismissed without prejudice. See id.

         Beginning in November 2018 and ending in May 2019, Petitioner filed a series of motions and letter applications pursuant to Fed. R. Crim. P. 35 and 18 U.S.C. § 3582. Those applications, filed in his criminal case, sought to challenge or modify his sentence. I denied these motions. See Opinion and Order Telfair, Crim. No. 08-0757 (Sept. 4, 2019), DE 117.

         In April 2019, Petitioner filed a fourth § 2241 petition. See Petition, Telfair v. United States, Civ. No. 19-9379 (D.N.J. Apr. 8, 2019), DE 1. Here, Petitioner again challenged his conviction arguing that, under the savings clause and pursuant to the Supreme Court's decision in Rosamond v, United States, 572 U.S. 65 (2014), he was actually innocent of the offenses for which he had been convicted. See Id. Judge Simandle dismissed the petition, finding that the Court lacked jurisdiction over the § 2241 case because the Petitioner had the opportunity to, but did not, raise this claim in his § 2255 motion. See Opinion, Telfair v. United States, Civ. No. 19-9379 (June 21, 2019), DE 3.

         In October 2019, Petitioner filed this, his fifth § 2241 petition in this action. (DE I.) Petitioner simultaneously filed a motion for bail. (DE 1-3.) Petitioner has also filed two supplemental briefs.[2] (DE 3, 4.)

         III. ...


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