UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

_______________________________

 :

TERRELL BROWN a/k/a :

MARCUS HOWARD : Civil Action No.

 :

Petitioner, : 11-3330 (RBK)

 :

v. : MEMORANDUM OPINION 

 : AND ORDER

DONNA ZICKEFOOSE, :

 :

Respondent. :

_______________________________:

 

This matter comes before the Court upon Petitioner’s

submission of application seeking § 2241 habeas corpus relief

(“Petition”), and it appearing that:

1. While the legal issues presented by the Petition are not

complex, the procedural history of Petitioner’s prior

applications filed in this District and other federal courts

requires a detailed review.

a. On November 8, 2011, a criminal complaint was filed in

the United States District Court for the Northern

District of Indiana (“District of Indiana”) against

Petitioner and certain Eric J. Edwards and Akimie L.

Gale; that complaint gave rise to the United States of

America v. Edwards et al., Crim. Action No. 01-0100 (RLM)

(N. D. Ind.), proceedings. In 2002, Petitioner was

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convicted on a panoply of drug-related offenses. See id.

Docket Entry No. 75. On September 10, 2002, Petitioner

was sentenced on the basis of these offenses, see id.;

apparently, in light of Petitioner’s prior conviction

(rendered, seemingly, by a state court in Wisconsin, on

the grounds of a vehicular homicide committed by

Petitioner), Petitioner was sentenced to an enhanced

sentence. See id., Docket Entries No. 76-78.

b. Petitioner appealed (either his conviction or his

sentence, or both) to the United States Court of Appeals

for the Seventh Circuit (“Seventh Circuit”), see id.,

Docket Entry No. 79, and the Seventh Circuit affirmed the

District of Indiana determination. See id. Docket Entry

Nos. 98. 

c. On the date of the aforesaid affirmance, Petitioner filed

his § 2255 motion, that motion was later amended and,

following that amendment, duplicated once again. See id.

Docket Entries Nos. 97, 100 and 105. On June 29, 2004,

the District of Indiana denied Petitioner’s § 2255

motion. See id., Docket Entry No. 123.

d. On July 15, 2004, Petitioner appealed denial of his §

2255 motion, see id., Docket Entry No. 124; that appeal

was dismissed by the Seventh Circuit on April 5, 2005. 

See id., Docket Entry No. 136. Following this dismissal,

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Petitioner filed a fleet of applications with the

District of Indiana, including another § 2255 motion and

an application for correction of sentence under Fed. R.

Crim. P 35. See id., Docket Entries Nos. 137 and 141. 

On February 6, 2006, the District of Indiana dismissed

Petitioner’s latest § 2255 motion for want of

jurisdiction, as second/successive. See id., Docket

Entry No. 142. Petitioner immediately moved for

reconsideration, which too was denied. See id., Docket

Entries Nos. 143 and 144.

e. Two years went by and, in February 2008, Petitioner moved

for “crack-cocaine” re-sentencing. See id., Docket

Entries No. 163 and 172. On June 5, 2008, Petitioner’s

application to that effect was also denied by the

District of Indiana. See Docket Entry No. 173. 

f. On November 16, 2011, Petitioner filed a § 2241 habeas

petition in this District, see Howard v. United States,

Civ. Action No. 10-5977 (RBK) (NJD); in that petition he

asserted that the sentence enhancement applied by the

District of Indiana to Petitioner’s federal sentence

(ensuing from his conviction on drug-related offenses)

was improper because, in light of the holding of Begay v.

United States, 553 U.S. 137 (2008), Petitioner’s

conviction rendered by Wisconsin state court (on the

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grounds of Petitioner’s vehicular homicide) should not

have operated as a valid basis for enhancement of

Petitioner’s federal sentence. See id., Docket Entry No.

1.

g. However, in April 2011, Petitioner informed this Court

that he wished to withdraw his § 2241 petition because he

applied to the Seventh Circuit for leave to file

second/successive § 2255 application asserting the very

same Begay-based challenges. See id., Docket Entry No.

3. Correspondingly, this Court granted Petitioner’s

request for withdrawal, while stressing that the Court’s

determination shall not be construed as expressing the

Court’s opinion about substantive or procedural validity

of invalidity of Petitioner’s § 2241 petition or his new

§ 2255 endeavors. See id., Docket Entry No. 4.

h. Shortly thereafter, Petitioner filed the Petition at bar,

see Instant Matter, Docket Entry No. 1; the Petition

asserted the very same Begay-based challenges (i.e.,

Petitioner alleged that the District of Indiana

improperly enhanced Petitioner’s sentence on the basis of

Petitioner’s Wisconsin state conviction). See id. 

Petitioner also alleged that this Court has Section 2241

jurisdiction to hear Petitioner’s challenges, see id.; in

support of that assertion Petitioner relied on the order

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he received from the Seventh Circuit in response to his

application for leave to file second/successive § 2255

motion. See id., Docket Entry No. 1, at 18. 

Specifically, that order read:

Terrell Brown has filed an application

pursuant to 28 U.S.C. § 2244(b)(3),

seeking authorization to file a

successive collateral attack under §

2255. Brown proposes an attack on the

sentencing court’s career offender

determination in reliance on Begay v.

United States, 553 U.S. 137 (2008). But

Begay does not announce a constitutional

rule as is required for authorization

under § 2244(b)(2)(A) & 2255(h)(2). See

Welch v. United States, 604 F.3d 408 (7th

Cir. 2010) (Chambers v. United States,

555 U.S. 122 (2009), and Begay announce

substantive rules, not rules arising from

the Constitution). Accordingly,

We DENY authorization and DISMISS Brown’s

application. We note, however, that the

dismissal is without prejudice to any

attempt by Brown to obtain relief under

Begay in an action pursuant to 28 U.S.C.

§ 2241. See United States v. Prevatte,

300 F.3d 792 (7th Cir. 2002); In re

Davenport, 147 F.3d 605 (7th Cir. 1998).

Id. (capitalization in original).

i. The Petition at bar contains extended discussion as

to why, in Petitioner’s opinion, this Court has §

2241 jurisdiction to grant him relief. See

generally, Instant Matter, Docket Entry No. 1. 

There appears to be no doubt that Petitioner’s

position to that effect derives directly from the

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second paragraph of the above-quoted Seventh

Circuit order.

2. While, in light of the second paragraph of the above-quoted

Seventh Circuit order, there is little wonder why Petitioner

is under impression that his application is properly filed

with this Court under Section 2241, Petitioner errs. This

Court is without jurisdiction under § 2241 to entertain the

Petition. A court presented with a petition for 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 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.), cert. denied,

490 U.S. 1025 (1985).

3. Section 2241 of Title 28 of the United States Code provides in

relevant part:

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). As a result of the practical

difficulties encountered in hearing a challenge to a federal

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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 1

States, 417 U.S. 333, 343-44 (1974); United States v. Hayman,

342 U.S. 205, 219 (1952). Section 2255 provides in relevant

part:

A prisoner in custody under sentence of a court

established by Act of Congress claiming the right

to be released upon the ground that the sentence

was imposed in violation of the Constitution or

laws of the United States, or that the court was

without jurisdiction to impose such sentence, or

that the sentence was in excess of the maximum

authorized by law, or is otherwise subject to

collateral attack, may move the court which imposed

the sentence to vacate, set aside or correct the

sentence.

28 U.S.C. § 2255. “Motions pursuant to 28 U.S.C. § 2255 are

the presumptive means by which federal prisoners can challenge

their convictions or sentences that are allegedly in violation

of the Constitution." Okereke v. United States, 307 F.3d 117,

120 (3d Cir. 2002). This is because § 2255 expressly

1

The addition of 28 U.S.C. § 2255 was deemed necessary because

a § 2241 petition must be filed in the district where the prisoner

is confined and “the few District courts in whose territorial

jurisdiction major federal penal institutions are located were

required to handle an inordinate number of habeas corpus actions

far from the scene of the facts . . . solely because of the

fortuitous concentration of federal prisoners within the district."

United States v. Hayman, 342 U.S. 205, 213-14 (1952).

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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" to test the

legality of the petitioner's detention. See 28 U.S.C. §

2

2255. Specifically, paragraph five of § 2255 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; see Cradle v. Miner, 290 F.3d 536 (3d Cir.

2002); In re Dorsainvil, 119 F.3d at 251. 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. (emphasis supplied). Indeed,

“Section 2255 is not 'inadequate or ineffective' merely

2

The “inadequate or ineffective" language was necessary 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).

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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 fair opportunity to seek collateral relief,

not to enable them to evade procedural requirements.” Id. at

539.3

4. Here, Petitioner does not assert any grounds as to why Section

2255 would be “inadequate or ineffective” remedy to address

his challenges to his federal sentence. All he asserts is

that his federal sentence was erroneously enhanced. This

Court, however, has no § 2241 jurisdiction to second guess the

decision of Petitioner’s federal sentencing court: that has

been established time and again in this Circuit. See, e.g.,

 In Dorsainvil, the Court of Appeals held that the remedy 3

provided by § 2255 is “inadequate or ineffective” (hence,

permitting resort to § 2241, a statute without timeliness or

successive petition limitations), only where 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. See In re Dorsainvil, 119 F.3d at

251-52. The Dorsainvil exception, however, is facially

inapplicable to the case at bar simply because there is no

Supreme Court precedent suggesting, even vaguely, that

Petitioner’s drug-related offenses underlying his federal

conviction are not a criminal conduct. In other words,

Petitioner conflates the Supreme Court holding in Begay v. United

States, 553 U.S. 137 (concluding that driving under influence is,

indeed, a criminal conduct too, but it is not a violent felony), 

with the District of Indiana’s finding of Petitioner’s guilt on

drug-related charges. 

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Rhines v. Holt, 2011 U.S. App. LEXIS 13606 (3d Cir. June 30,

2011) (affirming dismissal of § 2241 petition on want of

jurisdiction grounds where the petitioner – as Petitioner here

– asserted that he was “actually innocent” of the sentence

enhancement applied to him); United States v. McKeithan, 2011

U.S. App. LEXIS 11710 (3d Cir. June 8, 2011) (same); Delgado

v. Zickefoos, 2011 U.S. App. LEXIS 11468 (3d Cir. June 7,

2011) (same, addressing a § 2241 petition substantively

indistinguishable from the Petition at bar); Florez-Montano v.

Scism, 2011 U.S. App. LEXIS 11308 (3d Cir. June 2, 2011)

(same); Edmonds v. United States, 2011 U.S. App. LEXIS 9988

(3d Cir. N.J. May 16, 2011) (same). 

5. Moreover, addressing § 2241 sentence-enhancement challenges

based expressly on the holding of Begay, the Court of Appeals

unambiguously concluded that such challenges are

insufficient [to invoke] § 2241. § 2255; see also

Cradle v. United States, 290 F.3d 536, 538-39 (3d

Cir. 2002). In Dorsainvil we held that § 2241 can

be used to challenge a conviction for a crime that

was negated by an intervening change in the law.

[See] 119 F.3d at 249. But such relief is

available only in “rare situations” where the crime

of conviction was later deemed non-criminal. [See]

Okereke v. United States, 307 F.3d 117, 120 (3d

Cir. 2002). Section 2241 is not available for

intervening changes in the sentencing law. Id. 

For example, we did not allow Okereke to proceed

under § 2241 because his argument was based on

“Apprendi [which] dealt with sentencing and did not

render . . . the crime for which Okereke was

convicted, not criminal.” Id. at 120. 2

United States v. Kenney, 391 Fed. App’x 169, 172 (3d Cir.

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2010) (emphasis supplied, footnote omitted).

6. In its Kenney opinion, the Court of Appeals noted, in a

footnote, that 

[t]he Court of Appeals for the Eleventh Circuit has

held that § 2241 applies even to sentencing claims,

and therefore allowed an inmate in a position

substantially similar to Kenney's to proceed to the

merits of his claim. [See] Gilbert v. United

States, 609 F.3d 1159 (11th Cir. 2010). We reject

that holding as contrary to Okereke. Furthermore,

Gilbert reasoned that “[f]or federal sentencing

purposes, the act of being a career offender is

essentially a separate offense, with separate

elements (two felony convictions; for violent

felonies), which must be proved, for which separate

and additional punishment is provided.” 609 F.3d

1159. Therefore, it held that career offender

enhancements should be treated the same as

enhancements from non-capital to capital sentences,

which can be reviewed under § 2241. Id. The career

offender enhancement is not a separate offense,

however. If it were, its elements would need to be

proven to a jury beyond a reasonable doubt. [See]

United States v. Howard, 599 F.3d 269, 271-72 (3d

Cir. 2010) (“The government bears the burden of

establishing by a preponderance of the evidence,

prior convictions and career offender status”). In

contrast, the enhancement to a capital sentence from

a non-capital sentence must be proven to a jury

beyond a reasonable doubt. E.g., Sattazahn v.

Pennsylvania, 537 U.S. 101, 106 (2003) (citing

Bullington v. Missouri, 451 U.S. 430 (1981)).

Id., n. 2.

7. Consequently, under the Third Circuit law, which binds this

Court, the Petition at bar is subject to dismissal for want of

jurisdiction. This Court is not in the position to render on

the observations made to Petitioner by the Seventh Circuit as

to this Court’s § 2241 jurisdiction to hear Petitioner claims:

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while the holdings of both cases cited in the Seventh Circuit

order appear to be substantively identical to those reached by

the Court of Appeals for the Third Circuit in Dorsainvil and

Okereke, see United States v. Prevatte, 300 F.3d 792, 798, 802

(7th Cir. 2002) (section 2255's “‘savings clause’ for

petitioners who may be barred by the successive petition

requirements contained in the statute” permits federal

prisoner's filing of section 2241 petition to challenge

“conviction by alleging that, due to an intervening decision

of the Supreme Court of the United States [in Jones v. United

States, 529 U.S. 848 (2000)] that narrows significantly the

statute under which he was convicted, he stands convicted of

having committed an act that Congress did not intend to

criminalize”) (emphasis supplied); In re Davenport, 147 F.3d

605, 609 (7th Cir. 1998) (“Because the Constitution forbids

the suspension of the writ of habeas corpus except in a

situation of rebellion or invasion, U.S. Const. art. I, § 9,

cl.2, outright abolition of habeas corpus for federal

prisoners might conceivably have been held to violate the

Constitution. Whether for this or other reasons (the

legislative history is uninformative), Congress created a

safety hatch: if section 2255 proved in a particular case not

to be an adequate substitute for habeas corpus, the prisoner

could seek habeas corpus. This would block any argument that

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Congress was suspending the writ”) (emphasis supplied), this

Court cannot exclude the possibility that the Seventh

Circuit’s current reading of its Prevatte and Davenport

decisions is, nonetheless, different from Dorsainvil and

Okereke but analogous to the Eleventh Circuit’s hard-tojustify holding articulated in Gilbert v. United States, 609

F.3d 1159. However, such possibility is of no import for the

purposes of the analysis conducted by this Court here, under

the precedent rendered by the Court of Appeals for the Third

Circuit. 

8. Being mindful of the confusion likely to be suffered by

Petitioner in light of the somewhat incongruent statements

made to him by the Seventh Circuit and this Court, the Court

will promptly dismiss Petitioner’s instant Petition with

prejudice on the grounds of want of Section 2241 jurisdiction;

the Court will expressly withdraw its jurisdiction over this

matter in order to expedite Petitioner’s appeal to the Court

of Appeals for the Third Circuit, that is, in the event

Petitioner wishes to seek such appellate review. 

IT IS, therefore, on this 15 day of August , 2011, th

ORDERED that the Petition for a Writ of Habeas Corpus pursuant

to 28 U.S.C. § 2241 is DISMISSED for lack of jurisdiction; and it 4

 In light of the procedural history of Petitioner’s § 2255 4

endeavors, this Court finds it not in the interests of justice to

construe the Petition as Petitioner’s Section 2255 motion, and

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is further

ORDERED that this Court withdraws its jurisdiction over the

instant matter, hence ripening it for appeal; and it is further

ORDERED that the Clerk shall serve a copy of this Memorandum

Opinion and Order upon Petitioner by certified mail, return receipt

requested; and it is finally

ORDERED that the Clerk shall close the file on this matter.

s/Robert B. Kugler 

ROBERT B. KUGLER

United States District Judge

will not forward it to either the Seventh Circuit or to the

District of Indiana. 

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