NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

 

:

BENJAMIN WILLIAMS, : 

 :

Petitioner, :

:

v. :

:

UNITED STATES, : 

 :

Respondent. :

 :

Civil No. 10-6619 (RBK)

OPINION

APPEARANCES:

BENJAMIN WILLIAMS, Petitioner pro se

#30580-160

F.C.I. Fort Dix

P.O. Box 2000

Fort Dix, New Jersey 08320

MARK CHRISTOPHER ORLOWSKI, ESQ.

OFFICE OF THE U.S. ATTORNEY

402 East State Street, Room 430

Trenton, New Jersey 08608

Counsel for Respondent

KUGLER, District Judge

Petitioner, Benjamin Williams, a federal prisoner confined

at the Federal Correctional Institution in Fort Dix, New Jersey

(“FCI Fort Dix”), filed this habeas petition pursuant to 28

U.S.C. § 2241, challenging his federal sentence. After receiving

permission from this Court to do so, the Government filed a

motion to dismiss the petition for lack of subject matter

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jurisdiction. (Docket entry no. 9). Petitioner has not filed a

reply or traverse to the Government’s motion.

For the reason set forth below, the Court will grant the

Government’s motion and dismiss this habeas petition for lack of

jurisdiction, as it is a prohibited second or successive motion

under 28 U.S.C. § 2255. 

I. BACKGROUND

Petitioner was convicted in the United States District Court

for the Northern District of Ohio, for violations of 21 U.S.C. §

846, conspiracy to distribute and possess with intent to

distribute cocaine, and of 21 U.S.C. § 922(g)(1), felon in

possession of a firearm. On September 21, 2006, the district

court sentenced Petitioner to a prison term of 130 months with 5

years of supervised release on the first count, and a concurrent

term of 120 months imprisonment, with three years supervised

release, on the latter charge. (Petition at page 4; United

States v. Williams, No. 1:06-CR-116 (N.D. Ohio, March 7, 2006) at

docket entry no. 71).

Petitioner did not challenge his sentence between the time

of its imposition on September 21, 2006 through September 2010.

On September 24, 2010, Petitioner filed a Notice of Appeal to the

United States Court of Appeals for the Sixth Circuit. The Sixth

Circuit dismissed the appeal as untimely given the lapse of more

than four years after the judgment of conviction was entered in

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the district court. United States v. Benjamin Williams, No. 10-

4218 (6 Cir., Dec. 1, 2010). th

Thereafter, Petitioner filed a motion to vacate his

sentence, pursuant to 28 U.S.C. § 2255, in the district court

where he was sentenced. The Government filed a motion to dismiss

the motion as time-barred. In an unpublished opinion, the

district court granted the Government’s motion and dismissed the

§ 2255 as untimely. See United States v. Williams, 2011 WL

719140 (N.D. Ohio, Feb. 23, 2011). Petitioner appealed from the

district court’s decision, but the appeal was dismissed as

untimely. See Williams v. United States, Civil No. 11-3606 (6th

Cir., June 8, 2011, at docket entry no. 6).

Petitioner also filed a Rule 60(b)(6) motion before the

district court, which the court construed as a request to file a

second or successive § 2255 motion. Consequently, the district

court transferred the action to the Sixth Circuit for a

determination as to whether Petitioner may file a second or

successive § 2255 motion. See United States v. Williams, Civil

No. 10-2947 (N.D. Ohio).

Thereafter, on or about December 22, 2010, Petitioner filed

the instant habeas petition pursuant to 28 U.S.C. § 2241, in

which he challenges the execution of his sentence. In

particular, Petitioner alleges that the sentence enhancement

imposed by the sentencing court pursuant to 21 U.S.C. § 851

should not have been imposed. Further, Petitioner claims that

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the sentencing court improperly attributed 5-15 kilograms of

cocaine to Petitioner, rather than the less than 700 grams.

II. DISCUSSION

A. Standard of Review

Petitioner seeks a writ of habeas corpus pursuant to 28

U.S.C. § 2241(c)(3). That section states that the writ will not 1

be extended 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).

A pro se pleading is held to less stringent standards than

more formal pleadings drafted by lawyers. See 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).

B. Jurisdiction

 United States Code Title 28, Section 2241, provides in 1

pertinent part:

(a) Writs of habeas corpus may be granted by the

district courts within their respective jurisdictions

(c) The writ of habeas corpus shall not extend to a

prisoner unless- (3) He is in custody in violation

of the Constitution or laws or treaties of the United

States.

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Here, it would appear that Petitioner is arguing that he is

entitled to habeas relief under § 2241, irrespective of the fact

that he had filed an earlier § 2255 motion before his sentencing

court, as well as appeals to the Sixth Circuit, and a Rule

60(b)(6) motion, which had been denied as untimely. Indeed,

Petitioner never informed this Court as to the history of this

litigation. Rather, Petitioner attempts to couch his claims as a

challenge to his sentence computation, which is cognizable under

a § 2241 habeas petition, when in actuality, he is challenging

the constitutionality of his 130-month sentence imposed by the

sentencing court.

Typically, collateral challenges to a conviction or sentence

are brought before the sentencing court, and not the district of

confinement. As noted by the United States Court of Appeals for

the Third Circuit in In re Dorsainvil, 119 F.3d 245, 249 (3d

Cir.1997), § 2255 has been the “usual avenue” for federal

prisoners seeking to challenge the legality of their

confinement. See also Chambers v. United States, 106 F.3d 472, 2

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.

 As a result of the practical difficulties encountered in 2

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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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

successive petition limitations), where a prisoner who previously

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

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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).

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

other opportunity to seek judicial review with regard to the

claims now asserted in his petition. In fact, as noted above,

Petitioner has not informed the Court that he attempted to

challenge his sentence on similar grounds but was unsuccessful in

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both his direct appeal and his first § 2255 motion. Thus, it

would appear that Petitioner is seeking yet another opportunity

and a different court to challenge his sentence. Petitioner also

does not cite any retroactive change in substantive law that

would negate the criminality of his conduct; and he plainly fails

to show that he had no other opportunity to seek judicial review. 

He further fails to show that there is “newly discovered

evidence” that would negate his conviction. See 28 U.S.C. §

2255(e)(2)(A)(ii). Therefore, Petitioner has failed to

demonstrate circumstances that would render § 2255 an inadequate

or ineffective remedy. 

At best, Petitioner would seem to argue that he has not had

the opportunity to present his arguments for relief because his

prior applications were denied as untimely. Nevertheless, a

prior unsuccessful motion to vacate or correct a sentence does

not, of itself, demonstrate the inadequacy or ineffectiveness of

the § 2255 remedy. See Manna v. Schultz, 591 F.3d 664, 665 (3d

Cir. 2010). Moreover, the Third Circuit consistently has held

that a § 2255 motion is not rendered “inadequate or ineffective”

so as to allow invocation of a § 2241 habeas petition merely

because the petitioner is “unable to meet the stringent

gatekeeping requirements of the amended § 2255.” Okereke, 307

F.3d at 120; Cradle, 290 F.3d at 539; United States v. Brooks,

230 F.3d 643, 647 (3d Cir. 2000). See also United States v.

McKeithan, 437 Fed. Appx. 148, 150 (3d Cir. 2011); Marmolejos v.

Holder, 358 Fed. Appx. 289, 290 (3d Cir. 2009).

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Consequently, this habeas petition 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 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.

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

justice to transfer this Petition to the Sixth Circuit given the

considerable amount of time that has elapsed from Petitioner’s

last § 2255 motion, which shows lack of diligence on Petitioner’s

 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 an

earlier § 2255 motion, and a Rule 60(b) motion that was construed

as a second or successive § 2255 motion, both of 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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part in this case, and which itself was denied as untimely. 

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 subject matter jurisdiction,

because it is a second or successive § 2255 motion challenging

petitioner’s federal sentence. An appropriate order follows.

s/Robert B. Kugler 

ROBERT B. KUGLER

 United States District Judge

Dated: September 10, 2012 

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