UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

_______________________________

 :

JACKIE K ROBINSON, :

 : Civil Action No.

Petitioner, : 11-0012 (RBK)

 :

v. : MEMORANDUM OPINION 

 : AND ORDER

WARDEN DONNA ZICKEFOOSE, :

 :

Respondent. :

_______________________________:

 

This matter is before the Court upon Petitioner’s submission

of an application seeking habeas corpus relief (“Petition”), and it

appearing that:

1. The Petition was executed pursuant to 28 U.S.C. § 2241. 

See Docket Entry No. 1. The Petition challenges Petitioner’s

conviction entered, on the basis of Petitioner’s guilty plea,

by the United States District Court for the Eastern District

of Pennsylvania (“EDPA”) in 1993; the Petition sets forth 1

three arguments. See id. The first argument asserts that the

statements Petitioner made during his plea allocution were

insufficient to find him guilty of “using and carrying” –

 Petitioner “pled guilty to conspiracy to distribute 1

cocaine base, cocaine, and marijuana, in violation of 21 U.S.C. §

846, a RICO violation, in violation of 18 U.S.C. § 1962(c), and

carrying and using a firearm in connection with drug trafficking,

in violation of 18 U.S.C. § 924(c).” United States v. Robinson,

2002 U.S. Dist. LEXIS 16551, at *1 (E.D. Pa. Sept. 4, 2002)

(emphasis supplied). 

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rather than merely “carrying” – a firearm in connection with

his drug trafficking, that is, within the meaning of the term

“using” explained in Bailey v. United States, 516 U.S. 137

(1995), a Supreme Court decision entered after Petitioner’s

conviction. See Docket Entry No. 1, at 9. Petitioner’s

second argument asserts that Petitioner’s indictment was

deficient, while his third argument maintains that his defense

counsel provided him with ineffective assistance. See id. at

10-15. Each of these arguments closes with a request for

vacatur of Petitioner’s conviction and his immediate release. 

See id. at 9-15.

2. In his Petition, Petitioner notes that he filed a Section 2255

motion with the EDPA, and that this motion was denied on April

22, 1997, but the Petition is silent as to the date of

Petitioner’s filing of his Section 2255 motion. See id. at 3. 

Petitioner, however, asserts that the three above-listed

arguments were not previously presented to any other court

and, in addition, his instant Petition is jurisdictionally

proper because the Petition asserts a “new interpretation of

statute” and, so, the Petition is Petitioner’s “first

opportunity to put [his challenges] before a court.” Id. at

7.

3. However, Petitioner’s aforesaid statements are not reflective

of the truth. In United States v. Robinson, 2002 U.S. Dist.

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LEXIS 16551, the EDPA addressed Petitioner’s post-2255

challenges (raised in Petitioner’s motion for reduction of his

sentence on the basis of Amendment 599 to the U.S. Sentencing

Guidelines Manual); the EDPA detailed the relevant background

as follows:

On September 8, 1993, Robinson, a supervisor in the

Mark Anthony Brown drug distribution organization.

. . , pled guilty to conspiracy to distribute

cocaine base, cocaine, and marijuana, in violation

of 21 U.S.C. § 846, a RICO violation, in violation

of 18 U.S.C. § 1962(c), and carrying and using a

firearm in connection with drug trafficking, in

violation of 18 U.S.C. § 924(c). At the November

2, 1994 sentencing, this Court determined that

Robinson's offense level was 38, with a two point

enhancement for possessing a firearm. With a

criminal history category of I and a base offense

level of 40, Robinson received a 292 month prison

sentence on the conspiracy and RICO counts, and a

consecutive 60 month sentence on the firearms

count. Robinson timely filed an appeal of his

conviction and sentence. On May 31, 1995, the

Third Circuit Court of Appeals affirmed Robinson's

conviction and sentence. On March 7, 1997, Robinson

filed a pro se [m]otion . . . [p]ursuant to 28

U.S.C. § 2255, which this Court dismissed on April

22, 1997. This [c]ourt also denied Robinson's

certificate of appealability on July 23, 1997. The

Third Circuit also denied Robinson's requests for

certificates of appealability on September 17,

1997, [then, or repeated applications, on] August

7, 1998 . . . and [on] March 13, 2001. . . . The

essence of Robinson's [motion for reduction of his

sentence on the basis of Amendment 599] is that he

would not have agreed to a stipulation that the

conspiracy involved in excess of fifteen kilograms

of cocaine if he had been adequately advised by his

attorney of the sentence associated with that

amount of drugs. What Robinson is arguing is

ineffective assistance of counsel. Such a claim is

appropriately raised in a Habeas Corpus petition

pursuant to 28 U.S.C. § 2255. Because Robinson has

previously filed a § 2255 motion, a second or

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successive § 2255 motion must be approved by the

United States Court of Appeals for the Third

Circuit before it is filed. 28 U.S.C. § 2244(a). 

Robinson, 2002 U.S. Dist. LEXIS 16551, at *1-2, 7-8; appeal

dismissed United States v. Robinson, 85 Fed. App’x 875 (3d

Cir. 2003).

4. This Court is without jurisdiction, under § 2241, to entertain

the Petition at bar. A court presented with a petition for

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 there.” 

28 U.S.C. § 2243. Thus, “[f]ederal courts are authorized to

dismiss summarily any habeas petition that appears legally

insufficient on its face.” McFarland, 512 U.S. at 856; see

also United States v. Thomas, 221 F.3d 430, 437 (3d Cir.

2000); Siers v. Ryan, 773 F.2d 37, 45 (3d Cir.), cert. denied,

490 U.S. 1025 (1985).

5. Section 2241 of Title 28 of the United States Code provides in

relevant part:

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(c)(3). As a result of the practical

difficulties encountered in hearing a challenge to a federal

sentence in the district of confinement rather than the

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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 2

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

342 U.S. 205, 219 (1952). Section 2255 provides in relevant

part:

A prisoner in custody under sentence of a court

established by Act of Congress claiming the right

to be released upon the ground that the sentence

was imposed in violation of the Constitution or

laws of the United States, or that the court was

without jurisdiction to impose such sentence, or

that the sentence was in excess of the maximum

authorized by law, or is otherwise subject to

collateral attack, may move the court which imposed

the sentence to vacate, set aside or correct the

sentence.

28 U.S.C. § 2255. “Motions pursuant to 28 U.S.C. § 2255 are

the presumptive means by which federal prisoners can challenge

their convictions or sentences that are allegedly in violation

of the Constitution." Okereke v. United States, 307 F.3d 117,

120 (3d Cir. 2002). This is because § 2255 expressly

prohibits a district court from entertaining a challenge to a

 The addition of 28 U.S.C. § 2255 was deemed necessary 2

because a § 2241 petition must be filed in the district where the

prisoner is confined and “the few District courts in whose

territorial jurisdiction major federal penal institutions are

located were required to handle an inordinate number of habeas

corpus actions far from the scene of the facts . . . solely

because of the fortuitous concentration of federal prisoners

within the district." United States v. Hayman, 342 U.S. 205,

213-14 (1952).

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prisoner's federal sentence under § 2241 unless the remedy

under § 2255 is “inadequate or ineffective" to test the

legality of the petitioner's detention. See 28 U.S.C. §

3

2255. Specifically, paragraph five of § 2255 provides:

An application for a writ of habeas corpus

[pursuant to 28 U.S.C. § 2241] in behalf of a

prisoner who is authorized to apply for relief by

motion pursuant to this section, shall not be

entertained if it appears that the applicant has

failed to apply for relief, by motion, to the court

which sentenced him, or that such court has denied

him relief, unless it also appears that the remedy

by motion is inadequate or ineffective to test the

legality of his detention.

28 U.S.C. § 2255; see Cradle v. Miner, 290 F.3d 536 (3d Cir.

2002). A § 2255 motion is inadequate or ineffective,

authorizing resort to § 2241, “only where the petitioner

demonstrates that some limitation of scope or procedure would

prevent a § 2255 proceeding from affording him a full hearing

and adjudication of his wrongful detention claim.” Cradle,

290 F.3d at 538. “It is the inefficacy of the remedy, not the

personal inability to use it, that is determinative.” Id.

(emphasis supplied). Indeed, “Section 2255 is not 'inadequate

or ineffective' merely because the sentencing court does not

grant relief, the one-year statute of limitations has expired,

3

The “inadequate or ineffective" language was necessary because

the Supreme Court held that “the substitution of a collateral

remedy which is neither inadequate nor ineffective to test the

legality of a person's detention does not constitute a suspension

of the writ of habeas corpus." Swain v. Pressley, 430 U.S. 372,

381 (1977).

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or the petitioner is unable to meet the stringent gatekeeping

requirements of the amended § 2255. The provision exists to

ensure that petitioners have a fair opportunity to seek

collateral relief, not to enable them to evade procedural

requirements.” Id. at 539.

6. However, in In re Dorsainvil, 119 F.3d 245 (3d Cir. 1997), the

Court of Appeals held that the remedy provided by § 2255 is

“inadequate or ineffective” (hence, permitting resort to §

2241, a statute without timeliness or successive petition

limitations), where 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. See In re Dorsainvil, 119 F.3d at 251-52.4

7. Here, two out of Petitioner’s three arguments clearly fall

outside the narrow exception carved out in Dorsainvil, since

Petitioner’s challenges to his indictment and to the alleged

ineffectiveness of his counsel’s assistance are not based upon

any intervening Supreme Court interpretation of law. 

Correspondingly, Petitioner’s arguments based on the alleged

 The circumstances addressed in Dorsainvil were based on 4

the holding of Bailey; the Supreme Court in Bailey held that a

defendant could not be convicted of using a firearm during and in

relation to a drug-trafficking crime under 18 U.S.C. § 924(c)(1)

unless the government proved that the defendant “actively

employed the firearm during and in relation to the predicate

crime.” Dorsainvil, 119 F.3d at 247 (citation omitted). 

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deficiencies in his indictment and alleged ineffectiveness of

his counsel’s assistance should have been raised in

Petitioner’s Section 2255 motion, since § 2255 was not an

inadequate or ineffective vehicle to raise these claims. 

Indeed, the EDPA already expressly explained the same to

Petitioner when Petitioner raised his challenges to assistance

of his counsel by repackaging them into a motion seeking

relief pursuant to the Amendment 599. See Robinson, 2002 U.S.

Dist. LEXIS 16551, at 7-8. Therefore, Petitioner’s second and

third argument are subject to dismissal for lack of § 2241

jurisdiction without any extensive discussion.

8. The sole argument that warrants a more detailed examination is

Petitioner’s first argument, based on the holding of Bailey,

i.e., the Supreme Court’s case that gave rise to the

Dorsainvil exception. 

5

 Notably, here, the circumstances of Petitioner’s offense 5

and conviction differ, quite dramatically, from those in Bailey,

since the key underlying offenses in Petitioner’s case were

conspiracy to distribute cocaine base, cocaine, and marijuana, in

violation of 21 U.S.C. § 846, and a RICO violation, in violation

of 18 U.S.C. § 1962(c), and the Supreme Court never ruled that

these activities were “not a criminal conduct at all.” Here,

Bailey comes into play solely with regard to Petitioner’s

sentence enhancement imposed by the EDPA, but even that sentence

enhancement was imposed on the basis of Petitioner’s “carrying

and using a firearm,” and Petitioner never asserted that he was

not “carrying” a firearm. Thus, the gist of Petitioner’s Bailey

argument effectively rides on a pure hypothetical that, had the

EDPA enhanced Petitioner’s sentence only on the grounds of his

“carrying” a firearm, that enhancement would have produced a

shorter prison term than the enhancement based on both “carrying

and using” a firearm. For this reason alone, Petitioner’s

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9. In a case substantively indistinguishable from the one at bar,

the Court of Appeals stated as follows:

In 2008, [petitioner] filed a habeas corpus

petition under 28 U.S.C. § 2241 in the District

Court for the Middle District of Pennsylvania

seeking to challenge his conviction, imposed in

1990 in the District Court for the Eastern District

of Virginia, for use of a firearm . . . in

violation of 18 U.S.C. § 924(c)(1). [Petitioner]

contends that he did not “use” a firearm as term is

defined by Bailey v. United States, 516 U.S. 137

(1995), and, therefore, he is actually innocent of

the § 924(c) offense. The District Court ordered

respondent to file an answer to the petition.

Respondent argued that the petition should be

dismissed because [petitioner] cannot show that his

remedy under 28 U.S.C. § 2255 is inadequate or

ineffective, and thus he cannot pursue relief under

§ 2241. The Magistrate Judge agreed, concluding

that [petitioner] had ample opportunity to raise

his Bailey claim previously, as he could have

raised the claim in a § 2255 motion that he filed

in the sentencing court in 1997. The District

Court adopted that analysis and dismissed the §

2241 petition. [Petitioner] timely filed this

appeal. . . . [W]e will summarily affirm the

District Court's judgment because this appeal

resents no substantial question. See 3d Cir. LAR

27.4 and IOP Ch. 10.6. As the Magistrate Judge

fully and accurately explained, [petitioner] could

have asserted his challenge to the § 924(c)

conviction when he filed his § 2255 motion in the

sentencing court in March 1997, which was fifteen

months after the Bailey decision was issued.

Section 2255 provides the presumptive means through

which a federal prisoner must raise a challenge to

a conviction. [See] Okereke v. United States, 307

F.3d 117, 120 (3d Cir. 2002). Although a prisoner

Bailey-based argument is deficient. However, making the maximum

allowance possible to Petitioner in this matter, this Court

examines the jurisdictional validity of Petitioner’s Bailey-based

challenge as if Petitioner’s conviction was rendered solely on

the basis of Petitioner’s “usage” of a firearm, rather than on

the bases of his conspiracy, RICO and “carrying” a firearm. 

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may use § 2241 if § 2255 is shown to be “inadequate

or ineffective,” [petitioner] has not made this

showing. [Petitioner] makes no claim that he was

unable to raise the legal and factual substance of

his Bailey argument in the § 2255 proceeding, and

he was not prevented by AEDPA's strict gatekeeping

requirements from pursuing the claim at that time.

[Petitioner], therefore, is not in the “unusual

position” of having “had no earlier opportunity to

challenge his conviction” in light of Bailey. In

re Dorsainvil, 119 F.3d 245, 251 (3d Cir. 1997). 

As such, his § 2241 petition was properly

dismissed. We will affirm the District Court's

judgment. 

Davis v. Sniezek, 390 Fed. App’x 59 (3d Cir. 2010) (footnotes

omitted, emphasis supplied).

10. The circumstances at hand prompt an analysis identical to that

detailed in Davis v. Sniezek, 390 Fed. App’x 59. Here, just

as the petitioner in Davis v. Sniezek, Petitioner filed his §

2255 motion in March 1997, see Robinson, 2002 U.S. Dist. LEXIS

16551, at *1-2, i.e., fifteen months after the Supreme Court

issuance of its Bailey decision. Therefore, now, Petitioner

is not in the “unusual position” of having “had no earlier

opportunity to challenge his conviction” under Bailey: indeed,

he had that opportunity when he filed his § 2255 motion with

the EDPA, he just did not take advantage of that opportunity. 

However, Petitioner’s failure to raise his Bailey challenges

in his § 2255 motion did not transform Section 2255 into a

vehicle “inadequate” or “ineffective” to address Petitioner’s

Bailey-based position. Correspondingly, this Court has no

Section 2241 jurisdiction to address Petitioner’s Bailey-based

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claim in this action, and the Petition will be dismissed.

IT IS, therefore, on this 25 day of July , 2011, th

ORDERED that the Petition for a Writ of Habeas Corpus, Docket

Entry No. 1, filed pursuant to 28 U.S.C. § 2241, is dismissed for

lack of jurisdiction; and it is further 6

ORDERED that the Clerk shall serve this Memorandum Opinion and

Order upon Petitioner by regular U.S. mail and shall close the file

on this matter.

s/Robert B. Kugler 

ROBERT B. KUGLER,

United States District Judge

 Since Petitioner already filed a Section 2255 motion with 6

the EDPA, this Court finds it not in the interests of justice to

construe the Petition as a Section 2255 motion and, thus, will

not forward it to the EDPA. Analogously, in light of the Court

of Appeals’ three denials of Petitioner’s requests for

certificate of appealability as to the EDPA’s dismissal of his §

2255 motion, the Court finds it not in the interests of justice

to construe the Petition as an application for leave to file

second/successive § 2255 petition and, thus, will not direct

transfer of the Petition to the Court of Appeals. However, this

Court’s decision not to transfer the Petition should not be

construed as barring Petitioner from seeking leave from the Court

of Appeals to file his second/successive § 2255 motion with the

EDPA, that is, in the event Petitioner elects to do so. That

being said, no statement made in this Memorandum Opinion and

Order shall be construed as expressing this Court’s opinion that

Petitioner’s application for such leave should be deemed valid

(or invalid), either procedurally or substantively, or that

Petitioner’s second round of § 2255 challenges, if entertained by

the EDPA, should (or should not) be found meritorious. 

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