NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

 

:

MICHAEL EDWARD SHARPE, :

:

Petitioner, :

:

v. :

:

J.T. SHARTLE, :

:

Respondents. :

 :

Hon. Noel L. Hillman

Civil No. 11-2355 (NLH)

O P I N I O N

APPEARANCES:

MICHAEL EDWARD SHARPE, #56981-066

FCI Fairton

P.O. Box 420 

Fairton, New Jersey 08320

Petitioner Pro Se

HILLMAN, District Judge

Michael Edward Sharpe, a prisoner confined at FCI Fairton in

New Jersey, filed a Petition for a Writ of Habeas Corpus under 28

U.S.C. § 2241 challenging a federal sentence imposed by judgment

in a criminal case filed June 15, 2005, in the United States

District Court for the Eastern District of Pennsylvania. For the

reasons set forth below, this Court will dismiss the Petition for

lack of jurisdiction. 

Case 1:11-cv-02355-NLH Document 2 Filed 04/29/11 Page 1 of 9 PageID: 45
I. BACKGROUND

On January 21, 2003, a federal grand jury sitting in the

Eastern District of Pennsylvania returned a superseding

indictment charging Petitioner with five counts, including

assault on a federal employee in violation of 18 U.S.C. §§ 111

and 1114 (Count Five). (Docket Entry #1, p. 18). See United

States v. Sharpe, Crim. No. 02-0771 (TJS)-1 superseding

indictment (E.D. Pa. Jan. 21, 2003). On June 30, 2004, the

parties filed a plea agreement whereby Petitioner pled guilty to

counts four (possession of a firearm by a convicted felon) and

five (assault on a federal officer) of the superseding

indictment, and count one of the information (carrying a firearm

during a crime of violence). (Docket Entry #1, pp. 20, 27.) On

June 15, 2005, Judge Timothy J. Savage sentenced Petitioner to

imprisonment for 60 months on count four and a consecutive 24

months on count five. Id., pp. 34-39. However, the written

judgment mistakenly states that Petitioner pled guilty to assault

on a federal employee in violation of 18 U.S.C. §§ 111 and 114,1

 Section 114 of Title 18 provides: 1

Whoever, within the special maritime and

territorial jurisdiction of the United

States, and with intent to torture (as

defined in section 2340), maim, or disfigure,

cuts, bites, or slits the nose, ear, or lip,

or cuts out or disables the tongue, or puts

out or destroys an eye, or cuts off or

disables a limb or any member of another

(continued...)

2

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instead of §§ 111 and 1114. Id., p. 34; Sharpe, Crim. No. 02- 2

0771 (TJS)-1 judgment (E.D. Pa. June 15, 2005). 

On April 30, 2007, Petitioner filed a motion to vacate

pursuant to 28 U.S.C. § 2255, which Judge Savage denied on

November 2, 2007. See Sharpe, Crim No. 02-0771 (TJS)-1 mem.

opinion & order (E.D. Pa. Nov. 2, 2007). The Third Circuit

denied a certificate of appealability. See Sharpe, docket entry

#79. Petitioner filed a motion for correction or modification of

the record, arguing that he was actually innocent of assault on a

(...continued) 1

person; or Whoever, within the special

maritime and territorial jurisdiction of the

United States, and with like intent, throws

or pours upon another person, any scalding

water, corrosive acid, or caustic substance–

Shall be fined under this title or imprisoned

not more than twenty years, or both.

18 U.S.C. § 114.

 Section 1114 of Title 18 provides: 2

Whoever kills or attempts to kill any officer

or employee of the United States or of any

agency in any branch of the United States

Government (including any member of the

uniformed services) while such officer or

employee is engaged in or on account of the

performance of official duties, or any person

assisting such an officer or employee in the

performance of such duties or on account of

that assistance, shall be punished . . . 

18 U.S.C. § 1114.

3

Case 1:11-cv-02355-NLH Document 2 Filed 04/29/11 Page 3 of 9 PageID: 47
federal officer, which Judge Savage denied on December 2, 2010. 

Id., docket entry #89. 

On April 26, 2011, Petitioner filed the § 2241 Petition

presently before this Court. Petitioner asks this Court to

withdraw the plea agreement and vacate the judgment finding him

guilty of 18 U.S.C. § 111 and 114 on the following grounds: (1)

because he is actually innocent of violating 18 U.S.C. § 114 and

relief under § 2255 is no longer available, § 2255 is inadequate

and ineffective for his actual innocence claim; (2) his guilty

plea violates Rule 11 because he was never advised that he was

pleading guilty to 18 U.S.C. § 114 and understood he was charged

with and was pleading guilty to 18 U.S.C. § 1114; (3) counsel was

ineffective in failing to investigate and accurately advise

Petitioner what he was pleading guilty to; (4) the conviction and

sentence violate due process. (Docket Entry #1, pp. 8-10.)

II. DISCUSSION

A. Jurisdiction

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(c)(3). 

4

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Generally, a challenge to the validity of a federal

conviction or sentence must be brought under 28 U.S.C. § 2255. 

See Davis v. United States, 417 U.S. 333 (1974); Okereke v.

United States, 307 F.3d 117, 120 (3d Cir. 2002). This is because

28 U.S.C. § 2255 expressly prohibits a district court from

entertaining a challenge to a prisoner’s federal sentence under §

2241 unless the remedy under § 2255 is “inadequate or

ineffective.” See 28 U.S.C. § 2255(e). Specifically, § 3

2255(e) 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(e); see Cradle v. U.S. ex rel. Miner, 290 F.3d

536 (3d Cir. 2002); In re Dorsainvil, 119 F.3d 245, 251 (3d Cir.

1997); Millan-Diaz v. Parker, 444 F.2d 95 (3d Cir. 1971);

Application of Galante, 437 F.2d 1164 (3d Cir. 1971) (per

 The “inadequate or ineffective” language was necessary 3

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).

5

Case 1:11-cv-02355-NLH Document 2 Filed 04/29/11 Page 5 of 9 PageID: 49
curiam); United States ex rel. Leguillou v. Davis, 212 F.2d 681,

684 (3d Cir. 1954). 

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. The provision exists to ensure

that petitioners have a fair opportunity to seek collateral

relief, not to enable them to evade the statute of limitations

under § 2255 or the successive petition bar. Id. at 539.

In In re Dorsainvil, 119 F.3d at 251, the United States

Court of Appeals for the Third Circuit applied the “inadequate or

ineffective” test to a § 2241 claim challenging a sentence on the

basis of a change of substantive law that occurred after

Dorsainvil’s first § 2255 motion was decided. The Court of 4

Appeals first determined that Dorsainvil could not raise the

Bailey claim in a successive § 2255 motion because the AEDPA

restricted successive § 2255 motions to constitutional claims. 

 Dorsainvil claimed that he was actually innocent of “use 4

of a firearm” after the Supreme Court held in Bailey v. United

States, 516 U.S. 137 (1995), that the crime, “use of a firearm,”

does not reach certain conduct. The Supreme Court later ruled

that the court’s interpretation of the statute in Bailey applied

retroactively under § 2255 to convictions that were final. See 

Bousley v. United States, 523 U.S. 614 (1998).

6

Case 1:11-cv-02355-NLH Document 2 Filed 04/29/11 Page 6 of 9 PageID: 50
While the Third Circuit found § 2255 inadequate and ineffective

under the narrow circumstances present in that case, the court

cautioned: 

We do not suggest that § 2255 would be

“inadequate or ineffective” so as to enable a

second petitioner to invoke § 2241 merely

because that petitioner is unable to meet the

stringent gatekeeping requirements of the

amended § 2255. Such a holding would

effectively eviscerate Congress’s intent in

amending § 2255. However, allowing someone

in Dorsainvil’s unusual position - that of a

prisoner who had no earlier opportunity to

challenge his conviction for a crime that an

intervening change in substantive law may

negate, even when the government concedes

that such a change should be applied

retroactively - is hardly likely to undermine

the gatekeeping provisions of § 2255.

Dorsainvil at 251 (emphasis added).5

Here, Petitioner’s challenges to his sentence are within the

scope of claims cognizable under § 2255, and thus he may not seek

relief under § 2241 unless the remedy under § 2255 is inadequate

or ineffective. Section 2255 is not inadequate or ineffective

for Petitioner’s claims, however, because he does not contend

that, as a result of a Supreme Court decision issued subsequent

to his conviction, the conduct for which he was convicted

 Several courts of appeals have adopted similar tests. See 5

Reyes-Requena v. United States, 243 F.3d 893, 904 (5th Cir.

2001); In re Jones, 226 F.3d 328, 333-34 (4th Cir. 2000); Wofford

v. Scott, 177 F.3d 1236, 1244 (11th Cir. 1999); In re Davenport,

147 F.3d 605, 611 (7th Cir. 1998); Triestman v. United States,

124 F.3d 361 (2nd Cir. 1997).

7

Case 1:11-cv-02355-NLH Document 2 Filed 04/29/11 Page 7 of 9 PageID: 51
(assaulting a federal officer) is now non-criminal. See

Dorsainvil, 119 F. 3d at 250 (“A Supreme Court decision

interpreting a criminal statute that resulted in the imprisonment

of one whose conduct was not prohibited by law presents

exceptional circumstances where the need for the remedy afforded

by the writ of habeas corpus is apparent”) (quoting Davis v.

United States, 417 U.S. 333, 346 (1974)); Massey v. United

States, 581 F. 3d 172 (3d Cir. 2009) (petitioner may not

challenge federal sentence on Booker grounds via a writ of audita

querela); Okereke v. United States, 307 F.3d 117 (3d Cir. 2002)

(“Unlike the intervening change in law in In re Dorsainvil that

potentially made the crime for which that petitioner was

convicted non-criminal, Apprendi dealt with sentencing and did

not render conspiracy to import heroin, the crime for which

Okereke was convicted, not criminal. Accordingly, under our In

re Dorsainvil decision, § 2255 was not inadequate or ineffective

for Okereke to raise his Apprendi argument”). Because § 2255 is

not an inadequate or ineffective remedy for Petitioner’s

challenges to his sentence and conviction, this Court lacks

jurisdiction to entertain the Petition under § 2241 and will

dismiss the Petition for lack of jurisdiction.6

 It appears to this Court as Petitioner may be able to file 6

a motion in the sentencing court to correct a clerical error in

the judgment under Rule 36 of the Rules of Criminal Procedure on

the ground that the citation to 18 U.S.C. § 114, instead of 18

(continued...)

8

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III. CONCLUSION

The Court dismisses the Petition for lack of jurisdiction.

 /s/ Noel L. Hillman 

NOEL L. HILLMAN, U.S.D.J.

Dated: April 29 , 2011

At Camden, New Jersey

(...continued) 6

U.S.C. § 1114, was a clerical error. See Fed. R. Crim. P. 36

(“After giving any notice it considers appropriate, the court may

at any time correct a clerical error in a judgment, order, or

other part of the record, or correct an error in the record

arising from oversight or omission”); United States v. Barnes,

313 F. 2d 325, 327-28 (6th Cir. 1963) (the insertion in the

judgment of conviction of 26 U.S.C. § 7206(a) for 7206(2) was a

clerical error, which can be corrected by the sentencing court at

any time under Rule 36 of the Rules of Criminal Procedure). 

9

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