NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

HUGO CHAVEZ-CADENAS, :

: Civil Action No. 11-2914 (RMB)

Petitioner, :

:

v. : OPINION

:

UNITED STATES OF AMERICA, :

et al., :

:

Respondents. :

APPEARANCES:

Hugo Chavez-Cadenas

#17388-112

FCI Fairton

P.O. Box 420

Fairton, NJ 08320

BUMB, District Judge

Petitioner, Juan Carlos Arbelaez-Agudelo, a federal prisoner

confined at the Federal Correctional Institution at Fort Dix, New

Jersey, brings this petition for a writ of habeas corpus pursuant

to 28 U.S.C. § 2241, challenging his federal conviction. 

Petitioner has paid the $5 filing fee. 

This Court has reviewed the Petition, and for the reasons

set forth below, will dismiss the Petition for lack of

jurisdiction, as it is a prohibited second or successive motion

under 28 U.S.C. § 2255. 

Case 1:11-cv-02914-RMB Document 6 Filed 03/29/12 Page 1 of 8 PageID: 55
BACKGROUND

The following facts are taken from the petition, and are

accepted for purposes of this screening only. The Court has made

no findings as to the veracity of Petitioner’s allegations. 

Petitioner pled guilty to conspiracy to distribute and

possess with intent to distribute more than 500 grams of

methamphetamine, in violation of 21 U.S.C. 841(a)(1),

(b)(1)(A)(viii), and 846. Petitioner was sentenced to a term of

45 years by the United States District Court, Western District of

Missouri, Kansas City on April 13, 2010. He was then resentenced to a term of 30 years.

Petitioner previously filed a motion pursuant 28 U.S.C. §

2255 in the sentencing court. In his motion, he argued that

“evidence linking him to the drug conspiracy should have been

suppressed under the Fourth Amendment.” The § 2255 motion was

denied and the court denied Petitioner’s request for a

certificate of appealability (“COA”). Petitioner then applied to

the United States Court of Appeals, Tenth Circuit for a COA to

permit appeal of the denial of the § 2255 motion. The Tenth

Circuit denied a certificate of appealability on November 1,

2010.

Petitioner filed the instant application for habeas relief

on or about May 23, 2011. In the Petition, Petitioner contends

that he was subject to an invalid plea agreement and believes he

2

Case 1:11-cv-02914-RMB Document 6 Filed 03/29/12 Page 2 of 8 PageID: 56
is entitled to withdraw his plea and re-plead. He states that

“[a]gents built a false case against Petitioner based on

knowingly false facts that they knew were not true in order to

secure warrants for their surveillance, their search, and their

arrest.” He further claims that the government’s case was based

on uncorroborated statements of informants and that trial and

sentencing counsel were ineffective. Petitioner states that his

remedy by § 2255 is ineffective because his previous attorney was

ineffective.

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.

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

3

Case 1:11-cv-02914-RMB Document 6 Filed 03/29/12 Page 3 of 8 PageID: 57
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.

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).

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. Petitioner appears to contend that the

relief under § 2255 is “inadequate or ineffective.” Cf. In re

Dorsainvil, 119 F.3d 245 (3d Cir. 1997). However, the memorandum

filed by Petitioner in support of the Petition does not contain

legal support of that theory. Rather, his memorandum primarily

contains a recitation of alleged facts regarding the underlying

criminal conviction along with legal arguments related to arguing

the underlying issues as to why Petitioner believes that he

should be given another opportunity to attack that conviction. 

The issue this Court must look to is whether it would be proper

to allow such an attack. 

4

Case 1:11-cv-02914-RMB Document 6 Filed 03/29/12 Page 4 of 8 PageID: 58
As noted by the Court of Appeals for the Third Circuit in

Dorsainvil, 119 F.3d at 249, a motion under 28 U.S.C. § 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). 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 ground of either

(1) newly-discovered 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.

5

Case 1:11-cv-02914-RMB Document 6 Filed 03/29/12 Page 5 of 8 PageID: 59
Section 2255 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, 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.

Thus, under Dorsainvil, this Court would have jurisdiction

over the pending petition if, and only if, Petitioner could

demonstrate (1) his “actual innocence” (2) as a result of a

retroactive change in substantive law that negates the

6

Case 1:11-cv-02914-RMB Document 6 Filed 03/29/12 Page 6 of 8 PageID: 60
criminality of his conduct (3) for which he had not 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). 

Here, Petitioner does not allege facts bringing his

conviction within the Dorsainvil exception. He does not suggest

any basis for “actual innocence” and 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. To

the contrary, Petitioner challenges the validity of his sentence,

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”

because his prior motion for relief pursuant to § 2255 was

unsuccessful. 

Accordingly, since the Dorsainvil exception does not apply

here, this Court lacks jurisdiction to entertain this challenge

to Petitioner’s conviction under § 2241. 

C. Transfer

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

7

Case 1:11-cv-02914-RMB Document 6 Filed 03/29/12 Page 7 of 8 PageID: 61
which the action ... could have been brought at the time it was

filed.” 28 U.S.C. § 1631.

Because Petitioner does not assert any ground for relief

justifying authorization to file a second or successive § 2255

petition, and because Petitioner has filed a previous § 2255

motion, it does not appear that transfer would be in the interest

of justice. Accordingly, the petition will be dismissed without

prejudice for lack of jurisdiction. 

CONCLUSION

For the reasons set forth above, this action for relief

under § 2241 will be dismissed without prejudice for lack of

jurisdiction, because it is a second or successive motion under §

2255 challenging Petitioner’s federal sentence. An appropriate

order follows.

s/Renée Marie Bumb 

Renée Marie Bumb

United States District Judge

Dated: March 29, 2012 

8

Case 1:11-cv-02914-RMB Document 6 Filed 03/29/12 Page 8 of 8 PageID: 62