NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

ROBERT S. VISINTINE, :

Civil Action No. 11-2601 (RMB)

Petitioner, :

v. : O P I N I O N

DONNA ZICKEFOOSE, :

Respondent. :

APPEARANCES:

Robert S. Visintine, Pro Se

#14576-018

F.C.I. Fort Dix 

P.O. Box 2000

Fort Dix, NJ 08640

BUMB, District Judge

Petitioner Robert S. Visintine, a prisoner currently

confined at the Federal Correctional Institution at Fort Dix, New

Jersey, submitted a petition for a writ of habeas corpus,

pursuant to 28 U.S.C. § 2241. For the following reasons,

Petitioner’s claims under § 2241 will be dismissed; however,

because Petitioner raises claims concerning the lack of adequate

medical treatment in both his petition, and pending motions, this

Court will direct that a separate civil action be opened to

address those claims under Bivens v. Six Unknown Named Agents of

Federal Bureau of Narcotics, 403 U.S. 388, 389 (1971).

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BACKGROUND

According to the petition, on October 16, 1992, Petitioner

pled guilty in the United States District Court, Southern

District of Ohio, to 435 months imprisonment for armed bank

robbery and use of a gun in the commission of a crime of

violence. (Petition, ¶¶ 1-4). According to the docket of his

criminal case, United States v. Visintine, 92-cr-96 (S.D. Ohio),

Petitioner appealed to the circuit court. Furthermore, it

appears that Petitioner filed a motion pursuant to 28 U.S.C. §

2255 to vacate, set aside, or correct his sentence. See

Visintine v. United States, 95-cv-900 (S.D. Ohio), which was

denied, with the denial affirmed on appeal.

On May 3, 2011, Petitioner filed in this District Court a

petition for a writ of habeas corpus, pursuant to 28 U.S.C. §

2241. Petitioner alleges in his petition that:

. . . the Warden does not have a Constitutionally valid

judgment and conviction order to imprison [him]. In

1991-1992, medication was denied and withheld

(knowingly and intentionally) to coerce Visintine to

plea[d] guilty to crimes without an information or

indictment, and constructive denial of assistance of

counsel (5th & 6th Amend. violations) . . . .”

(Pet., ¶ 7). Furthermore, Petitioner requests:

. . . immediate and unconditional release where the

plea of guilty was un-Constitutional- not knowing, not

intelligent and not voluntary, a result of cruel and

unusual punishment and the denial of the 5th Amend.

requirement of an indictment or an information, due

process of law clause, and a constructive denial of the

6th Amend. effective assistance of counsel for his

defense.

2

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(Pet., p. 5). Thus, Petitioner argues that his imprisonment is

in violation of the Constitution.

However, Petitioner also asserts that he is being denied

medication, and complains about the conditions of confinement at

the Fort Dix facility. For example, he states that he has been

forced to take his medication before eating; that he has been

refused medication; that the prison is overcrowded, and the

bathrooms are not clean; that violence has increased; and other

complaints. (Pet., ¶ 7).

Additionally, Petitioner has filed four motions, addressing

his medical complaints and asserting that he is not receiving

adequate medical care.

DISCUSSION

A. Jurisdiction

To begin, the Court notes that a pro se pleading is held to

less stringent standards than more formal pleadings drafted by

lawyers. See 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).

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Petitioner seeks a writ of habeas corpus pursuant to 28

U.S.C. § 2241(c)(3). That section states that the writ will not

be extended 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). A motion filed pursuant to § 2255 is the

exclusive remedy for an individual seeking to vacate his federal

conviction or sentence. 

“Section 2241 is the only statute that confers habeas

jurisdiction to hear the petition of a federal prisoner who is

challenging not the validity but the execution of his sentence.”

Coady v. Vaughn, 251 F.3d 480, 485-486 (3d Cir. 2001). A

petition for a writ of habeas corpus under 28 U.S.C. § 2241 in

the district where the prisoner is confined provides a remedy

“where petitioner challenges the effects of events ‘subsequent’

to his sentence.” Gomori v. Arnold, 533 F.2d 871, 874 (3d Cir.

1976)(challenging erroneous computation of release date). See

also Soyka v. Alldredge, 481 F.2d 303 (3d Cir. 1973)(where

petitioner alleged a claim for credit for time served prior to

federal sentencing).

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

re Dorsainvil, 119 F.3d 245, 249 (3d Cir. 1997), 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.

4

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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). 

Congress amended § 2255 as part of the Antiterrorism and

Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110

Stat. 1214 ("AEDPA"). Section 2255 states, 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. § 2255.1 

1 A motion to vacate, correct or set aside a sentence under

§ 2255 must be filed in the sentencing court within one year of

the latest of: (1) the date on which the judgment of conviction

became final; (2) the date of the removal of any impediment to

making such a motion that was created by unlawful government

action; (3) the date on which a right asserted by a movant was

first recognized by the United States Supreme Court and made

retroactive to cases pending on collateral review; or (4) the

date on which a movant could have discovered the facts supporting

the claim[s] presented through the exercise of due diligence. 

See 28 U.S.C. § 2255(f). Furthermore, once a prisoner has filed

one § 2255 motion, he may not file a second or successive motion

unless he first obtains a certification from a panel of the

appropriate Court of Appeals permitting him to do so on the

grounds of (1) newly discovered evidence that would clearly and

convincingly negate the possibility that a reasonable fact finder

would have found the movant guilty of the offense charged, or (2)

a previously unavailable and retroactively applicable new rule of

5

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In this case, Petitioner attempts to relitigate his criminal

case, asserting that his plea was not voluntary, and that he had

ineffective assistance of counsel. These claims are not properly

before this Court in a § 2241 petition; rather, their

jurisdiction lies in § 2255. However, Petitioner has challenged

his conviction and sentence before the sentencing court and the

circuit court, on direct appeal and in a previously filed § 2255

motion, and his claims have been denied. 

This Court notes that 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. Here, Petitioner does not

assert any grounds for relief justifying authorization to file a

second or successive § 2255 motion. This Court notes that

Petitioner previously filed a § 2255 motion, as well as various

other actions in the sentencing court and court of appeals, which

were also denied. Further, any § 2255 claims concerning

Petitioner’s 1992 conviction would be untimely. Thus, it does

not appear that transfer would be in the interest of justice. 

However, the Court notes that Petitioner is free to move for

constitutional law. See 28 U.S.C. § 2255(h). 

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authorization to file a second or successive § 2255 motion in the

Court of Appeals for the Sixth Circuit, if he so desires.

Based on the foregoing, Petitioner’s claims concerning his

conviction and sentence, as asserted in his § 2241 petition, must

be dismissed for lack of jurisdiction.

This Court finds that the petition and motions raise a claim

of deliberate refusal on the part of prison officials to provide

adequate care for Petitioner’s alleged serious medical

conditions, which if true requires expeditious attention. 

However, Petitioner’s conditions of confinement and medical

claims also do not find their basis of jurisdiction in § 2241. 

Rather, these claims must be filed in a civil rights action

pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau

of Narcotics, 403 U.S. 388, 389 (1971), or in a civil action for

declaratory or injunctive relief. 

Therefore, in accordance with the attached Order, this Court

will order the Clerk of the Court to open a new civil case on

behalf of Petitioner. As directed in the Order, Respondent will

be ordered to provide, under seal, medical records demonstrating

that Petitioner is not in imminent danger.

7

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CONCLUSION

For the reasons set forth above, this § 2241 action will be

dismissed, and a new civil action will be created. An

appropriate order follows.

s/Renée Marie Bumb 

RENÉE MARIE BUMB

United States District Judge

Dated: August 12, 2011 

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