NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

JAMES J. MCCORMACK, :

Civil Action No. 11-2575 (RBK)

Petitioner, :

v. : OPINION

DONNA ZICKEFOOSE, :

Respondent. :

APPEARANCES:

Petitioner pro se

James J. McCormack

17632-038

FCI Fort Dix

P.O. Box 2000

Fort Dix, NJ 08640

Attorney for Respondents

Mark Christopher Orlowski

Office of the U.S. Attorney

District of New Jersey

970 Broad Street

Suite 700

Newark, NJ 07101

KUGLER, District Judge

Petitioner James J. McCormack, a prisoner currently confined

at FCI Fort Dix, has submitted a petition for a writ of habeas

corpus pursuant to 28 U.S.C. § 2241. Respondent made an 1

 Section 2241 provides in relevant part: 1

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

Supreme Court, any justice thereof, the district courts

and any circuit judge within their respective

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application for leave to file a Motion to Dismiss in Lieu of

Answer. The Court granted Respondent’s request and a Motion to

Dismiss was filed (docket entry no. 12). 

Because this Court lacks jurisdiction to consider this

Petition, this Court will grant the Motion to Dismiss and dismiss

the Petition for lack of jurisdiction. 

I. BACKGROUND

After a trial by jury, Petitioner was found guilty of

violation of 18 U.S.C. § 1951 and found not guilty of a charge

pursuant to 18 U.S.C. § 924(c)(1). See United States v.

McCormack, Civil Action No. 00-10309 (District of Massachusetts);

Petition, Docket Entry 1 at 9. On November 20, 2002, Petitioner

was sentenced to 188 months of imprisonment and two years of

supervised release. See Petition, Docket Entry 1 at 2. 

Petitioner asserts here that seventeen sentence enhancements,

seven of which were related to use of a firearm, resulted in a

higher sentence. See id. at 10. Petitioner claims that those

seven additional enhancements were related to the substantive

crime charged pursuant to 18 U.S.C. § 924(c)(1) for which he was

acquitted. See id. 

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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Appeals to his conviction and sentence were affirmed, see

McCormack, supra, and Petitioner filed a 28 U.S.C. § 2255 motion

which was denied on August 9, 2008, see McCormack v. United

States, Civil Action No. 06-12137 (District of Massachusetts). 

Petitioner brings this petition challenging issues related

to his criminal sentence and claiming that relief under 28 U.S.C.

§ 2255 in inadequate or ineffective and thus he now seeks relief

within this Court under 28 U.S.C. § 2241. 

Respondents bring their motion to dismiss arguing that this

Court lacks subject matter jurisdiction over the petition since

the claims raised in the petition are only cognizable on direct

appeal or in a motion filed pursuant to 28 U.S.C. § 2255.2

II. DISCUSSION

A. Legal Standard

“Habeas corpus petitions must meet heightened pleading

requirements.” McFarland v. Scott, 512 U.S. 849, 856 (1994). A

petition must “specify all the grounds for relief” and set forth

“facts supporting each of the grounds thus specified.” See 28

U.S.C. § 2254 Rule 2(c) (amended Dec. 1, 2004), applicable to §

2241 petitions through Habeas Rule 1(b). A court presented with

a petition for writ of habeas corpus “shall forthwith award the

Additionally, Respondents assert that Petitioner has failed 2

to exhaust his administrative remedies with respect to this

issue. In light of this Court’s disposition of the other

arguments presented, it is not necessary to address this

argument.

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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. 1985).

B. Analysis

Here, Petitioner seeks habeas relief under 28 U.S.C. § 2241

related to his criminal conviction and sentence despite the fact

that he has previously filed an unsuccessful challenge to his 

conviction by a motion under 28 U.S.C. § 2255. Respondents have

moved to dismiss the Petition for lack of jurisdiction. 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 raises his claims related to sentencing issues

here relying on a recent interpretation of 18 U.S.C. 924(c)(1) in

the matter of United States v. O’Brien, 130 S.Ct. 2169 (2010). 

Petitioner asserts that the ruling there invalidates the sentence

enhancement imposed upon him related to his use of a firearm. 

See Petition, Docket entry 1 at 5, 15-19.

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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 Okereke v.

United States, 307 F.3d 117, 120 (3d Cir. 2002); United States v.

McKeithan, 437 Fed.Appx. 148, 150 (3d Cir. 2011); 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. A one-year limitations period applies to § 2255 motions. 

See 28 U.S.C. § 2255(f).

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 a §

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2255 remedy would be considered “inadequate or ineffective”

merely because a petitioner is unable to meet the stringent

gatekeeping requirements of § 2255. Id. Rather, 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.

In Cradle v. U.S. ex rel. Miner, 290 F.3d 536 (3d Cir.

2002), the Court of Appeals emphasized the narrowness of the

“inadequate or ineffective” exemption. 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. “Section 2255 is not ‘inadequate or ineffective’ merely

because the sentencing court does not grant relief, the one-year

statute of limitations has expired, or the petitioner is unable

to meet the stringent gatekeeping requirements of the amended §

2255. The provision exists to ensure that petitioners have a

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fair opportunity to seek collateral relief, not to enable them to

evade procedural requirements.” Id. at 539. 

Thus, under Dorsainvil and its progeny, this Court would

have jurisdiction over Petitioner’s petition 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. See Dorsainvil, 119 F.3d at

251-52; Cradle, 290 F.3d at 539, Okereke v. United States, 307

F.3d at 120.

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

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

gatekeeping requirements. 

Petitioner asserts that O’Brien renders invalid the

sentencing enhancement that was imposed upon him because firearm

usage must be proved beyond a reasonable doubt in front of a

jury. But to the contrary, the O’Brien court noted that using or

discharging a firearm are sentencing factors which may be

considered by the sentencing judge. See O’Brien, 130 S.Ct. at

2180. Petitioner has not established that the O’Brien ruling

represents a change in law invalidating his sentence. 

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Accordingly, since the Dorsainvil exception does not apply

here, this Court lacks jurisdiction to entertain this challenge

to Petitioner’s conviction, which is essentially a second or

successive motion under § 2255. Petitioner has previously

pursued his remedies and his requests have already been denied.

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. Because Petitioner unsuccessfully

raised his grounds for relief in a previous 2255 petition, the

Court finds that it is not in the interests of justice to

transfer this action.

III. CONCLUSION

For the reasons set forth above, Respondent’s motion to

dismiss is granted and the petition will be dismissed with

prejudice. An appropriate order follows.

S/Robert B. Kugler 

ROBERT B. KUGLER

United States District Judge

Dated: January 15, 2013

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