NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

 

:

RONALD REGINALD PHILLIPS, : 

 :

Petitioner, :

:

v. :

:

UNITED STATES OF AMERICA, : 

 :

Respondent. :

 :

Civil No. 10-6276 (NLH)

OPINION

APPEARANCES:

RONALD REGINALD PHILLIPS, Petitioner pro se

#39691-019

F.C.I. Fort Dix

East: P.O. Box 2000

Fort Dix, New Jersey 08640

HILLMAN, District Judge

Petitioner, Ronald Reginald Phillips, a federal prisoner

confined at the Federal Correctional Institution in Fort Dix, New

Jersey (“FCI Fort Dix”), brings this habeas petition pursuant to

28 U.S.C. § 2241, challenging his federal conviction. Petitioner

names as party respondent, the United States of America.

This Court has reviewed the petition, and for the reasons

set forth below, will dismiss this habeas action for lack of

jurisdiction, as it is a prohibited second or successive motion

under 28 U.S.C. § 2255. 

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I. BACKGROUND

The following facts are taken from the petition, and are

accepted for purposes of this screening only. The Court has made

no findings as to the veracity of petitioner’s allegations.

Petitioner states that he was convicted in September 1989,

in the United States District Court for the Northern District of

Georgia, on numerous narcotics offenses, including drug

trafficking and a charge of possession and use of a firearm in

relation to a drug trafficking crime, in violation of 18 U.S.C. §

924(c). (Petition at pg. 1). Petitioner was sentenced on

November 21, 1989, to an aggregate term of 420 months in prison

with ten years supervised release. (Pet., pg. 2). The United

States Court of Appeals for the Eleventh Circuit affirmed his

conviction in 1992. See United States v. Clavis, 956 F.2d 1079

(11 Cir. 1992). The United States Supreme Court denied th

certiorari in 1993. Clavis v. United States, 507 U.S. 998

(1993).

Petitioner filed his first motion to vacate, set aside or

correct sentence, pursuant to 28 U.S.C. § 2255, on August 25,

1995. This § 2255 motion was denied, and the appeal was later

withdrawn. A second motion was filed on November 19, 1996, and

was dismissed. A third § 2255 motion was filed on December 21,

1999. (Pet., pg. 2). This motion likewise was denied on March

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24, 2000. See Phillips v. United States, Civil No. 1:99-cv03364-WCO (N.D. Ga., Mar. 24, 2000). 

Petitioner filed this habeas petition on or about December

6, 2010. He does not allege that he sought authorization from

the Eleventh Circuit to file a successive motion to challenge his

conviction, as required under 28 U.S.C. §§ 2244(a), 2255. 

Rather, in the present petition, Petitioner asserts that his

challenge to his § 924(c) may be considered under a § 2241 habeas

petition pursuant to In re Dorsainvil, 119 F.3d 245 (3d Cir.

1997), and thus, this is not a prohibited second or successive

§2255 motion. 

II. DISCUSSION

A. Standards for a Sua Sponte Dismissal 

Section 2243 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.

Petitioner brings his habeas petition as a pro se litigant. 

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 and any supporting submissions must be

construed liberally and with a measure of tolerance. See Royce

v. Hahn, 151 F.3d 116, 118 (3d Cir. 1998); Lewis v. Attorney

General, 878 F.2d 714, 721-22 (3d Cir. 1989); United States v.

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Brierley, 414 F.2d 552, 555 (3d Cir. 1969), cert. denied, 399

U.S. 912 (1970).

Section 2241 of Title 28 of the United States Code provides

in relevant part:

(c)The writ of habeas corpus shall not extend

to a prisoner unless– . . . He is in custody

in violation of the Constitution or laws or

treaties of the United States.

28 U.S.C. § 2241(a), (c)(3).

B. Jurisdiction

Here, Petitioner contends that he is entitled to habeas

relief under § 2241, despite the fact that he had filed three

earlier § 2255 motions before his sentencing court, all of which

were denied, because his conviction under 18 U.S.C. § 924(c) was

in violation of a later decided Supreme Court case, Bailey v.

United States, 516 U.S. 137 (1995). In Bailey, the Court held

that § 924(c) requires a showing that the firearm was an

operative factor in relation to the predicate offense (in this

case, the drug trafficking offenses). Petitioner claims that no

such showing was made at his criminal trial. Thus, he contends

that relief under § 2255 is “inadequate or ineffective.” Cf. In

re Dorsainvil, 119 F.3d 245 (3d Cir.1997).

 As noted by the United States Court of Appeals for the Third

Circuit in Dorsainvil, 119 F.3d at 249, § 2255 has been the

“usual avenue” for federal prisoners seeking to challenge the

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legality of their confinement. See also Chambers v. United 1

States, 106 F.3d 472, 474 (2d Cir. 1997); Wright v. United States

Bd. of Parole, 557 F.2d 74, 77 (6th Cir. 1977); United States v.

Walker, 980 F. Supp. 144, 145-46 (E.D.Pa. 1997)(challenges to a

sentence as imposed should be brought under § 2255, while

challenges to the manner in which a sentence is executed should

be brought under § 2241). Generally, challenges to the validity

of a federal conviction or sentence by motions under § 2255 must

be brought before the Court which imposed the sentence. See 28

U.S.C. § 2255; Davis v. United States, 417 U.S. 333 (1974);

Okereke v. United States, 307 F.3d 117, 120 (3d Cir. 2002). In

addition, before a second or successive § 2255 motion is filed in

the district court, the petitioner must move in the appropriate

court of appeals for an order authorizing the district court to

consider the petition on the grounds of either (1) newlydiscovered evidence that would be sufficient to establish by

clear and convincing evidence that no reasonable factfinder would

have found the petitioner guilty of the offense or (2) a new rule

of constitutional law made retroactive by the Supreme Court. 28

U.S.C. §§ 2244(a), 2255.

 As a result of the practical difficulties encountered in 1

hearing a challenge to a federal sentence in the district of

confinement rather than the district of sentence, in its 1948

revision of the Judicial Code, Congress established a procedure

whereby a federal prisoner might collaterally attack his sentence

in the sentencing court. See 28 U.S.C. § 2255; Davis v. United

States, 417 U.S. 333, 343-44 (1974); United States v. Hayman, 342

U.S. 205, 219 (1952).

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Section 2255, however, contains a safety valve where “it

appears that the remedy by motion is inadequate or ineffective to

test the legality of [Petitioner’s] detention.” In Dorsainvil, a

case involving a Bailey claim, the Third Circuit held that the

remedy provided by § 2255 is “inadequate or ineffective,”

permitting resort to § 2241 (a statute without timeliness or

successive petition limitations), where a prisoner who previously

had filed a § 2255 motion on other grounds “had no earlier

opportunity to challenge his conviction for a crime that an

intervening change in substantive law may negate.” 119 F.3d at

251. The court emphasized, however, that its holding was not

intended to suggest that § 2255 would be considered “inadequate

or ineffective” merely because a petitioner is unable to meet the

stringent gatekeeping requirements of § 2255. Id. To the

contrary, the court was persuaded that § 2255 was “inadequate or

ineffective” in the unusual circumstances presented in Dorsainvil

because it would have been a complete miscarriage of justice to

confine a prisoner for conduct that, based upon an intervening

interpretation of the statute of conviction by the United States

Supreme Court, may not have been criminal conduct at all. Id. at

251-52.

Thus, under Dorsainvil, this Court would have jurisdiction

over Petitioner’s action if, and only if, Petitioner demonstrates

(1) his “actual innocence” (2) as a result of a retroactive

change in substantive law that negates the criminality of his

conduct (3) for which he had no other opportunity to seek

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judicial review. 119 F.3d at 251-52; see also Okereke, 307 F.3d

at 120; Cradle v. U.S. ex rel. Miner, 290 F.3d 536, 539 (3d Cir.

2002).

In this case, Petitioner fails to demonstrate that he had no

other opportunity to seek judicial review with regard to this

claim. He states that the Bailey case was decided after his

conviction and first § 2255 motion. However, he fails to explain

why he did not raise (if in fact he did not raise his Bailey

claim) in his later two § 2255 motions, which were filed well

after the Supreme Court ruled in Bailey. 

To the extent Petitioner is claiming actual innocence with

respect to his § 924(c) conviction, such claim also fails to

warrant habeas relief in this instance. A freestanding claim of

actual innocence has never been explicitly recognized by the

Supreme Court. See House v. Bell, 547 U.S. 518 (2006); Baker v.

Yates, 2007 WL 2156072 (S.D. Cal. July 25, 2007) (“In practice,

however, the Supreme Court has never explicitly held that a

freestanding innocence claim is available during habeas review,

even in a death penalty case.”). In a noncapital case such as

this, an assertion of actual innocence is ordinarily “not itself

a constitutional claim, but instead a gateway through which a

habeas petitioner must pass to have his otherwise barred

constitutional claim considered on the merits.” Herrera v.

Collins, 506 U.S. 390, 404, 113 S.Ct. 853, 122 L.Ed. 2d 203

(1993); Whitby v. Dormire, 2 Fed. Appx. 645, at *1 (8th Cir.

7

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2001); Mansfield v. Dormire, 202 F.3d 1018, 1023-24 (8th Cir.

2000). 

In House, the United States Supreme Court was presented with

a freestanding claim of innocence, but it “decline[d] to resolve

this issue.” House, 126 S.Ct. at 2087. The Supreme Court did,

however, provide some insight into what might be required to

prove such a claim. Id. (noting, “whatever burden a hypothetical

freestanding innocence claim would require, this petitioner has

not satisfied it.”). The Court recognized, as it did in Herrera,

that the standard for any freestanding innocence claim would be

“‘extraordinarily high,’” id. (quoting Herrera, 506 U.S. at 417),

and it would require more than the showing required to make a

successful gateway innocence claim. Id. at 2087 (“The sequence

of the Court’s decisions in Herrera and Schlup -first leaving 2

unresolved the status of freestanding claims and then

establishing the gateway standard-implies at the least that

Herrera requires more convincing proof of innocence than

Schlup.”). Even assuming that such a freestanding claim could be

raised, Petitioner in this instance has not met or even

approached an “extraordinarily high” standard here. 

Therefore, Petitioner has failed to demonstrate

circumstances that would render § 2255 an inadequate or

ineffective remedy. While he contends that Bailey was an

intervening change in the law that renders non-criminal the one

 Schlup v. Delo, 513 U.S. 298, 327 (1995). 2

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count for which he was convicted, he fails to explain why this

claim was not asserted in his second and third § 2255 motions. 

Petitioner also fails to demonstrate any circumstances amounting

to a “complete miscarriage of justice” that would justify

application of the safety-valve language of § 2255 rather than

its gatekeeping requirements. Therefore, this Petition must be

considered a successive motion under § 2255, which Petitioner has

not received authorization to file, and over which this Court

lacks jurisdiction. 28 U.S.C. § 2255. 3

Whenever a civil action is filed in a court that lacks

jurisdiction, “the court shall, if it is in the interest of

justice, transfer such action ... to any other such court in

which the action ... could have been brought at the time it was

filed.” 28 U.S.C. § 1631.

This Court finds that it would not be in the interests of

justice to transfer this Petition to the Eleventh Circuit given

the amount of time that has elapsed from Petitioner’s last § 2255

 Although this Court is reclassifying the petition as a 3

§ 2255 motion, no Miller notice and order is necessary to afford

Petitioner an opportunity to raise additional § 2255 grounds. 

The purpose of the Third Circuit’s decision in United States v.

Miller, 197 F.3d 644 (3d Cir. 1999), was to provide fair warning

to petitioners whose petitions were being recharacterized as

§ 2255 motions so that they could ensure that all their claims

were fully raised in a single all-encompassing § 2255 petition. 

Such warning, the Miller court reasoned, is necessary because

petitioners will thereafter be unable to file “second or

successive” § 2255 petitions without certification by the Court

of Appeals. Because Petitioner in this case already has filed

three § 2255 motions, which were addressed by the sentencing

Court, and because the current petition is itself “second or

successive,” no purpose would be served by a Miller notice.

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motion, which shows lack of diligence on Petitioner’s part in

this case. Accordingly, this Petition will be dismissed for lack

of jurisdiction.

III. CONCLUSION

For the reasons set forth above, this habeas action will be

dismissed with prejudice for lack of jurisdiction, because it is

a second or successive § 2255 motion challenging petitioner’s

federal sentence. An appropriate order follows.

 /s/ Noel L. Hillman 

NOEL L. HILLMAN

 United States District Judge

At Camden, New Jersey

Dated: July 8, 2011

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