NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

STEPHEN MATHIES, :

Civil Action No. 10-6314 (NLH)

Petitioner, :

v. : OPINION

WARDEN PAUL M. SCHULTZ, :

Respondent. :

APPEARANCES:

Stephen Mathies, Pro Se

#25889-145

FCI Phoenix

37910 N. 45 Ave. th

Phoenix, AZ 85086

HILLMAN, District Judge

Petitioner, Stephen Mathies, was a prisoner confined at the

Federal Correctional Institution at Fort Dix, New Jersey, at the

time he submitted this petition for a writ of habeas corpus

pursuant to 28 U.S.C. § 2241. Because it appears from a review

of the petition that this Court lacks jurisdiction to consider

this petition, and that it is not in the interest of justice to

transfer, this Court will dismiss the petition without prejudice. 

See 28 U.S.C. §§ 1631, 2243, 2244(a), 2255.

I. BACKGROUND

According to the allegations of the petition and previous

dockets from Petitioner’s prior civil and criminal cases, on May

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19, 1995, Petitioner was sentenced by the United States District

Court, Eastern District of Pennsylvania, to 240 months

imprisonment. The United States Court of Appeals for the Third

Circuit affirmed the judgment on February 21, 1996. 

On June 2, 1997, Petitioner filed a motion pursuant to 28

U.S.C. § 2255. The Eastern District of Pennsylvania denied the

motion on June 15, 1998. The Court of Appeals for the Third

Circuit denied Petitioner’s request for certificate of

appealability on May 28, 1999. 

The instant matter began when Petitioner filed, in his

criminal case in the United States District Court, Eastern

District of Pennsylvania, a letter dated October 5, 2010

requesting clarification of his sentence. That letter was deemed

to be a petition for a writ of habeas corpus, pursuant to 28

U.S.C. § 2241. The matter was then transferred to this Court as

Petitioner was incarcerated at FCI Fort Dix at the time of

filing. Petitioner has since been transferred to FCI Phoenix. 

Petitioner submitted an Amended Petition to this Court, in

which he argues that his sentence should be vacated based on

sentencing guideline concerns (as well as alleging ineffective

assistance of counsel as to this claim) and because he was

actually innocent of the enhancement element.

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II. STANDARDS FOR A SUA SPONTE DISMISSAL

United States Code Title 28, 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.

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). Nevertheless, a federal district court can

dismiss a habeas corpus petition if it appears from the face of

the petition that the petitioner is not entitled to relief. See

Lonchar v. Thomas, 517 U.S. 314, 320 (1996); Siers v. Ryan, 773

F.2d 37, 45 (3d Cir. 1985), cert. denied, 490 U.S. 1025 (1989). 

See also 28 U.S.C. §§ 2243, 2255.

III. ANALYSIS

Petitioner contends that he is entitled to habeas relief

under § 2241, despite the fact that he has previously filed

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unsuccessful challenges to his conviction, including a motion

under 28 U.S.C. § 2255 in the district of conviction. Second or

successive motions under § 2255 are not permitted except in the

instance of newly discovered evidence or a new rule of

constitutional law that has been made retroactive. See 28 U.S.C.

§ 2255(h). Neither of those conditions exist here.

Petitioner hinges his challenge to his federal sentence on

an allegation regarding an undischarged term of imprisonment that

served as an enhancement to his sentence. He contends that he

was “actually innocent” of the enhancement element regarding the

undischarged sentence. 

As noted by the Court of Appeals for the Third Circuit in In

re Dorsainvil, 119 F.3d 245, 249 (3d Cir. 1997), Section 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, 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). Motions under § 2255

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

28 U.S.C. § 2255.

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Section 2255 does, however, contain 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,

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.

Here, Petitioner does not allege facts bringing his

conviction within the Dorsainvil exception. Petitioner cannot

demonstrate that his circumstances constitute the sort of

“complete miscarriage of justice” that would justify application

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

gatekeeping requirements. To the contrary, here, the Petitioner

challenges the legality of his confinement, a challenge which

would generally fall within the scope of claims cognizable on

direct appeal or in a § 2255 motion in the district of

confinement. Section 2255 is not “inadequate or ineffective” in

this matter; Petitioner’s attempt under 2255 merely failed. 

Further, Petitioner’s claim of “actual innocence” must fail. 

A claim of “actual innocence” relates to innocence in fact, not

innocence based on a legal, procedural defect. A litigant must

present evidence of innocence so compelling that it undermines

the court’s confidence in the trial’s outcome of conviction, thus

permitting him to argue the merits of his claim. A claim of

actual innocence requires a petitioner to show: (a) new reliable

evidence not available for presentation at the time of the

challenged trial; and (b) that it is more likely than not that no

reasonable juror would have convicted the petitioner in the light

of the new evidence. See House v. Bell, 126 S. Ct. 2064, 2077

(2006); Schlup v. Delo, 513 U.S. 298, 324, 327 (1995). 

Furthermore, the Supreme Court, in House, emphasized that the

gateway standard for habeas review in claims asserting actual

innocence is extremely demanding and permits reviews only in the

“extraordinary” case. See House, 126 S. Ct. At 2077 (citing

Schlup, 513 U.S. at 327. 

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In the case at bar, Petitioner’s claim of “actual innocence”

is not based on any new evidence suggesting any “innocence in

fact.” Rather, Petitioner merely asserts that his sentence was

unduly enhanced. However, as stated by the Third Circuit, this

is not a sufficient basis for granting relief under § 2241. See

Piggee v. Bledsoe, 412 Fed.Appx. 443, 445 3d Cir.

2011)(“[Petitioner] makes no allegation that he is actually

innocent of the crime for which he was convicted; he only asserts

that his sentence was improperly calculated. The Dorsainvil

exception is therefore inapplicable, and relief under Section

2241 is not available”)(citations omitted). 

Therefore, Petitioner is not entitled to relief on his

“actual innocence” claim. Furthermore, Petitioner has failed to

demonstrate circumstances that would render § 2255 an inadequate

or ineffective remedy; nor does he represent an intervening

change in the law that renders non-criminal the crime for which

he was convicted. 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. As such, 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. 

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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.

Petitioner has pursued his remedies in the court of

conviction and his request for relief has previously been denied

there. Accordingly, it would not be in the interest of justice

to transfer this Petition to the trial court, as a possible

§ 2255 motion.

IV. CONCLUSION

For the reasons set forth above, the Petition will be

dismissed without prejudice for lack of jurisdiction. An

appropriate order follows.

At Camden, New Jersey /s/ Noel L. Hillman 

Noel L. Hillman

United States District Judge

Dated: November 16, 2011

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