NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

 

:

WILLIAM SMITH, : 

 :

Petitioner, :

:

v. :

:

WARDEN DONNA ZICKEFOOSE, : 

 :

Respondent. :

 :

Civil No. 10-3324 (JBS)

OPINION

APPEARANCES:

WILLIAM SMITH, Petitioner pro se

#21442-038

F.C.I. Fort Dix

P.O. Box 2000

Fort Dix, New Jersey 08640

SIMANDLE, District Judge

Petitioner, William Smith, 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, Warden Donna Zickefoose, as the person

having custody over him pursuant to 28 U.S.C. § 2242.

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. Smith’s motion for leave to file

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supplemental pleadings, which was filed on or about October 20,

2010, will be denied as moot.

I. BACKGROUND

The following facts are taken from the petition and the

motion for leave to file a supplemental pleading, 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 on or about June 9,

1997, in the United States District Court for the District of

Massachusetts, on charges of being a felon in possession of a

weapon and ammunition in violation of 18 U.S.C. § 922(g)(1). He

was sentenced to 262 months imprisonment. Petitioner filed a

direct appeal before the United States Court of Appeals for the

First Circuit, which affirmed the conviction and sentence on

August 29, 2002. His petition for a writ of certiorari was

denied by the Supreme Court on March 24, 2003.

It appears that Petitioner filed his first motion under 28

U.S.C. § 2255 in 2009, claiming that the Supreme Court had

created a new rule of constitutional law entitling Petitioner to

relief. His motion was denied by the sentencing court on July

24, 2009. Petitioner appealed to the Court of Appeals for the

First Circuit, which affirmed denial of the § 2255 motion on

September 28, 2009. Thereafter, it appears that Petitioner

attempted to file a § 2241 habeas petition before the sentencing

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court, claiming that he was actually innocent of the enhanced

charge. That action was dismissed on November 30, 2009.

In a supplemental pleading submitted to this Court on

October 19, 2010, Petitioner shows that he sought permission from

the First Circuit to file a second or successive motion under 

§ 2255. Petitioner asserts that his request was based on “newly

discovered evidence on part of his enhancement under United

States Sentencing Guidelines (“USSG”) § 4B1.4(B)(3)(A), for

having possessed a firearm in connection with a controlled

substance offense, with a victim impact, that he is actually

innocent of committing.” (See Petitioner’s Motion for a

Supplemental Pleading at pg. 3). 

On June 22, 2010, the First Circuit entered judgment denying

Petitioner leave to file a second or successive § 2255 motion. 

The court found that:

enhancement was not dependent on the presence of a crime

victim; rather, it was triggered because petitioner was

found to have “used or possessed the firearm or ammunition

in connection with a ... controlled substance offense.” §

4B1.4(b)(3)(A). Nor is petitioner correct in suggesting

that the absence of victims necessarily discredits the

testimony of the government’s principal cooperating witness.

In any event, this very same contention was raised by

petitioner and rejected by this court in an earlier

application for leave to file a second or successive

petition. See 1 Cir. No. 09-2254 (Sept. 28, 2009 st

judgment). Petitioner has thus failed to satisfy the

pertinent § 2255(h) gatekeeping criterion.

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(See Petitioner’s Motion for a Supplemental Pleading at Judgment

in Smith v. United States, 1 Cir. No. 10-1632 (June 22, 2010 st

Judgment)).

Petitioner filed this § 2241 habeas petition on or about

June 25, 2010. Petitioner attempts to challenge his sentence as

enhanced on a claim of actual innocence and “newly discovered

evidence under U.S.S.G. § 4B1.4(B)(3)(A) pursuant to § 3771

victim impact showing [his] actual innocence.” 

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.

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

U.S. 912 (1970).

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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 an

earlier § 2255 motion and an earlier § 2241 habeas petition

before his sentencing court, both of which were denied, because

he is actually innocent of the enhanced firearms offense under 18

U.S.C. § 3771. It appears that Petitioner 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

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

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

 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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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.

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

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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

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).

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In this case, Petitioner argues that he is actually innocent

of the alleged enhancement regarding the firearms offense. He

does not cite any retroactive change in substantive law that

would negate the criminality of his conduct; nor does he

demonstrate that he had no other opportunity to seek judicial

review. Indeed, Petitioner raised this precise argument in his

first § 2255 motion, his subsequent § 2241 petition, and his

motion before the First Circuit for leave to file a second or

successive § 2255 motion. In all of these prior actions,

Petitioner’s argument was rejected by the courts.

Furthermore, his reliance on “newly discovered evidence” is

misplaced because the evidence is premised on the Government’s

cooperating witness’s testimony, which Petitioner claims is

contradictory, and which could have been discovered through the

exercise of due diligence. See 28 U.S.C. § 2255(e)(2)(A)(ii). 

Indeed, it appears that this issue actually had been raised

before the sentencing court on several occasions as argued by

Petitioner himself. Nothing about it is “newly discovered.”

Petitioner’s claim of actual innocence 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

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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.

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

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

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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. 

Petitioner’s arguments rely on his claim that the

Government’s cooperating witness gave contradictory statements

that calls into question the validity of his sentencing

enhancement under U.S.S.G. §4G1.4. He argues that the witness

perjured herself, that her testimony was not reliable and that

this “newly discovered” evidence was so convincing that no

reasonable factfinder would have found him guilty of the enhanced

offense. However, the sentencing court entertained Petitioner’s

arguments and rejected them, finding the witness credible. 

Consequently, Petitioner has failed to allege facts sufficient to

show that he is factually innocent of the enhanced sentence

under U.S.S.G. § 4B1.4. 

Therefore, Petitioner is not entitled to relief on an

“actual innocence” claim. Petitioner has failed to demonstrate

circumstances that would render § 2255 an inadequate or

ineffective remedy. He does not allege an intervening change in

the law that renders non-criminal the crimes for which he was

convicted. Petitioner also fails to demonstrate any

circumstances amounting to a “complete miscarriage of justice”

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that would justify application of the safety-valve language of §

2255 rather than its gatekeeping requirements. Therefore, this

Petition must be considered a second or 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.

Here, Petitioner already has petitioned the Court of Appeals

for the First Circuit for leave to file a successive § 2255

motion, which was denied on June 22, 2010 because Petitioner

failed to allege any of the predicate grounds permitting a second

or successive § 2255 motion. Therefore, this Court finds that it

would not be in the interests of justice to transfer this

 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 a

§ 2255 motions, which was 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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Petition to the First Circuit. Accordingly, this Petition must

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. Petitioner’s motion to file a supplemental

pleading is denied as moot. An appropriate order follows.

s/ Jerome B. Simandle 

JEROME B. SIMANDLE

 United States District Judge

Dated: January 7, 2011

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