NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

 

:

BYRON WALKER, : 

 :

Petitioner, :

:

v. :

:

J.T. SHARTLE, WARDEN, : 

 :

Respondent. :

 :

Civil No. 11-4518 (NLH)

OPINION

APPEARANCES:

BYRON WALKER, Petitioner pro se

#46692-004

F.C.I. Fairton

P.O. Box 420

Fairton, New Jersey 08320

HILLMAN, District Judge

Petitioner, Byron Walker, a federal prisoner confined at the

Federal Correctional Institution in Fairton, New Jersey (“FCI

Fairton”), brings this habeas petition pursuant to 28 U.S.C. §

2241, challenging his federal conviction. Petitioner names as

party respondent, the Warden at FCI Fairton, J.T. Shartle.

This Court has reviewed the petition, and for the reasons

set forth below, will dismiss this habeas action for lack of

jurisdiction, as it is a prohibited second or successive motion

under 28 U.S.C. § 2255. 

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I. 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 states that he was convicted in federal court on

November 4, 1994, for conspiracy to possess with the intent to

distribute cocaine, in violation of 21 U.S.C. § 846; use of or

carrying a firearm in connection with a drug trafficking crime,

in violation of 18 U.S.C. § 924(c); and possession of

unregistered firearms with silencers, in violation of 26 U.S.C. §

5861(d) and § 5871. Petitioner filed a timely notice of appeal,

and the United States Court of Appeals for the Eleventh Circuit

affirmed Petitioner’s conviction and sentence on September 2,

1999. The United States Supreme Court denied his petition for a

writ of certiorari on October 2, 2000. (Petition, pp. 2-3).

Because Petitioner did not identify the United States

District Court where Petitioner had been convicted, the Court

conducted a PACER search to verify the procedural and factual

history relevant to the conviction now challenged by Petitioner

in this § 2241 habeas petition. The Court takes judicial notice

of the procedural and factual history as follows.

Pursuant to a judgment of conviction entered on November 4,

1994, in the United States District Court for the Southern

District of Florida (Miami), a jury found Petitioner guilty of

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the following charges: conspiracy to possess with the intent to

distribute cocaine, in violation of 21 U.S.C. §§ 846 and

841(a)(1); using or carrying a firearm during and in relation to

a drug trafficking crime, in violation of 18 U.S.C. § 924(c) and

18 U.S.C. § 2; and possession of unregistered machine gun, in

violation of 26 U.S.C. § 5861(d) and § 5871 and 18 U.S.C. § 2. 

The jury also answered verdict interrogatories finding that

Petitioner and his co-defendants had knowingly used or carried a

“machine gun,” and that each had knowingly used or carried a

firearm “equipped with a silencer.” Petitioner was sentenced to

an aggregated prison term of 624 months to be followed with five

years supervised release.

Petitioner filed a timely notice of appeal. On September 2,

1999, the United States Court of Appeals for the Eleventh Circuit

issued a per curiam opinion affirming Petitioner’s conviction and

sentence. On October 2, 2000, the United States Supreme Court

denied his petition for a writ of certiorari. Walker v. United

States, 531 U.S. 837 (2000).

On September 26, 2001, Petitioner filed a motion to vacate,

set aside, or correct his sentence, pursuant to 28 U.S.C. § 2255,

alleging two grounds for relief. Namely, Petitioner asserted (1)

a claim of ineffective assistance of appellate counsel for

failure to challenge the absence of a Pinkerton instruction, and 1

(2) that his Fifth Amendment right of due process and his Sixth

 Pinkerton v. United States, 328 U.S. 640 (1946). 1

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Amendment right to a trial by jury were violated when he was

charged and convicted by a jury for conspiracy to possess with

intent to distribute a detectable amount of cocaine, but was

sentenced for an amount that had not been proven beyond a

reasonable doubt. The second claim was based on the then-recent

Supreme Court decision in Apprendi v. New Jersey, 530 U.S. 466

(2000). (See Walker v. United States of America, Civil No. 1:01-

cv-03990-DTKH (United States District Court for the Southern

District of Florida (Miami)) at Docket entry nos. 1 and 3).

On May 16, 2002, an Order was entered in the United States

District Court for the Southern District of Florida denying

Petitioner’s § 2255 motion for the reasons stated in the Report

and Recommendation of the Magistrate Judge filed on April 30,

2002. (Id, Docket entry nos. 18 and 19). Petitioner appealed to

the Eleventh Circuit, and on or about August 31, 2004, a mandate

of the Eleventh Circuit was issued, including the certified copy

of the judgment and opinion of the Eleventh Circuit (decided

January 29, 2004), which affirmed the denial of Petitioner’s §

2255 motion. (Id., Docket entry no. 33).

Thereafter, on or about April 19, 2010, Petitioner filed a

motion for relief from judgment pursuant to Fed.R.Civ.P. 60(b),

namely, with respect to the denial of his § 2255 motion. (Id.,

Docket entry no. 39). In an Order entered on April 26, 2010, the

district court denied Petitioner’s Rule 60(b) motion. The court

held that “[b]ecause petitioner is essentially attacking this

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court’s previous resolution of his § 2255 petition on the merits,

the instant Rule 60(b) motion operates as a second or successive

motion to vacate, and petitioner is required to move the Eleventh

Circuit Court of Appeals for an order authorizing this court to

consider it as a successive habeas petition. Without such

authorization, this court lacks subject matter jurisdiction to

determine the motion. See generally Torres v. United States,

2009 WL 3030207 (11 Cir. 2009); United States v. Winston, 2009 th

WL 3080848 (11 Cir. 2009).” (Id., Docket entry no. 41 at pp. th

2-3). On or about May 13, 2010, Petitioner filed an appeal from

the April 26, 2010 Order to the Eleventh Circuit. He also moved

for a certificate of appealability. (Id., Docket entry nos. 46

and 47). On June 29, 2010, the district court dismissed the

motion for a certificate of appealability for lack of subject

matter jurisdiction. (Id., Docket entry no. 50). On November

24, 2010, the Eleventh Circuit denied Petitioner’s motion for

issuance of a certificate of appealability because Petitioner

failed to make the requisite showing of the denial of a

constitutional right. (Id., Docket entry no. 58).

Thereafter, on or about August 5, 2011, Petitioner filed the

instant habeas petition pursuant to 28 U.S.C. § 2241 and/or 28

U.S.C. § 1651, in which he challenges the constitutionality of

his custody and the execution of his sentence. He also asserts

claims of “Factual/Actual Innocence and Fundamental Miscarriage

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of Justice” admittedly as exceptions that would permit him to

seek habeas relief. (Petition at pg. 2). 

In particular, Petitioner alleges that the sentence imposed

for his conviction under the conspiracy count in violation of 21

U.S.C. § 846 and § 841(a)(1)) was unconstitutionally applied to

him because these states do not contain a definition of a

penalty. He also contends that the indictment had no reference

to 21 U.S.C. § 841(b)(1)(A), and therefore, it cannot be applied

for purposes of imposing his sentence upon a conviction of § 846. 

Thus, Petitioner argues that his indictment and conviction under

§§ 846 and 841(a)(1) lacked fair notice of a penalty and

consequently he was denied due process as guaranteed under the

Fifth Amendment. (Petition at pp. 3-7). Further, Petitioner

argues that the Government failed to meet the legal requirements

of § 841(b)(1)(A)(ii) because it did not submit proof of the

chemical analysis of the substance as cocaine or the weight of

the substance, which criteria are necessary for the district

court to impose a sentence under § 841(b)(1)(A), and thus, the

district court lacked authority or jurisdiction to impose the

sentence in this matter. (Petition at pp. 7-12).

Petitioner also claims that the mandatory minimum sentence

of thirty (30) years should not have been imposed because the

Pinkerton doctrine of co-conspirator liability is

unconstitutional. (Petition at pp. 12-14). 

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II. 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.

Petitioner brings his habeas petition as a pro se litigant. 

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).

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(a), (c)(3).

B. Jurisdiction

Here, it would appear that Petitioner is arguing that he is

entitled to habeas relief under § 2241, despite the fact that he

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had filed an earlier § 2255 motion before his sentencing court,

which had been denied, based on newly asserted claims of actual

innocence and fundamental miscarriage of justice. Thus, it would

appear that he contends that relief under § 2255 is “inadequate

or ineffective” so as to proceed under § 2241. Cf. In re

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

 As noted by the United States Court of Appeals for the Third

Circuit in Dorsainvil, 119 F.3d at 249, § 2255 has been the

“usual avenue” for federal prisoners seeking to challenge the

legality of their confinement. See also Chambers v. United 2

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

 As a result of the practical difficulties encountered in 2

hearing a challenge to a federal 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

States, 417 U.S. 333, 343-44 (1974); United States v. Hayman, 342

U.S. 205, 219 (1952).

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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 grounds of either (1) newlydiscovered 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.

Section 2255, however, 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, a

case involving a Bailey claim, 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

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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 Petitioner’s action 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. 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).

In this case, Petitioner fails to demonstrate that he had no

other opportunity to seek judicial review with regard to the

claims now asserted in his petition. In fact, his claims are

nothing more than his contorted, re-characterized version of

similar claims he raised on direct appeal and in his first § 2255

motion. Thus, it would appear that Petitioner is seeking yet

another opportunity and a different court to challenge his

conviction and sentence on the same grounds that he has raised in

his past attempts to overcome his federal conviction and the

lengthy sentence imposed. Petitioner does not cite any

retroactive change in substantive law that would negate the

criminality of his conduct; and he plainly fails to show that he

had no other opportunity to seek judicial review. He also does

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not contend that there is “newly discovered evidence” that would

negate his conviction. See 28 U.S.C. § 2255(e)(2)(A)(ii).

Moreover, to the extent Petitioner is claiming actual

innocence with respect to his § 846 and § 841(a)(1) conviction,

such claim also fails to warrant habeas relief in this instance. 

A freestanding claim of actual innocence has never been

explicitly recognized by the Supreme Court. See House v. Bell,

547 U.S. 518 (2006); Baker v. Yates, 2007 WL 2156072 (S.D. Cal.

July 25, 2007) (“In practice, however, the Supreme Court has

never explicitly held that a freestanding innocence claim is

available during habeas review, even in a death penalty case.”). 

In a noncapital case such as this, an assertion of actual

innocence is ordinarily “not itself a constitutional claim, but

instead a gateway through which a habeas petitioner must pass to

have his otherwise barred constitutional claim considered on the

merits.” Herrera v. Collins, 506 U.S. 390, 404, 113 S.Ct. 853,

122 L.Ed. 2d 203 (1993); Whitby v. Dormire, 2 Fed. Appx. 645, at

*1 (8th Cir. 2001); Mansfield v. Dormire, 202 F.3d 1018, 1023-24

(8th Cir. 2000). 

In House, the United States Supreme Court was presented with

a freestanding claim of innocence, but it “decline[d] to resolve

this issue.” House, 126 S.Ct. at 2087. The Supreme Court did,

however, provide some insight into what might be required to

prove such a claim. Id. (noting, “whatever burden a hypothetical

freestanding innocence claim would require, this petitioner has

not satisfied it.”). The Court recognized, as it did in Herrera,

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that the standard for any freestanding innocence claim would be

“‘extraordinarily high,’” id. (quoting Herrera, 506 U.S. at 417),

and it would require more than the showing required to make a

successful gateway innocence claim. Id. at 2087 (“The sequence

of the Court’s decisions in Herrera and Schlup -first leaving 3

unresolved the status of freestanding claims and then

establishing the gateway standard-implies at the least that

Herrera requires more convincing proof of innocence than

Schlup.”). Even assuming that such a freestanding claim could be

raised, Petitioner in this instance has not met or even

approached an “extraordinarily high” standard here. Indeed, his

allegations wholly fail to support any factual innocence, but

rather are based erroneously on legal technicalities.

Indeed, Petitioner’s factual innocence claim seems to be

based on the argument that the trial court erred and his trial

counsel was ineffective in allowing a Pinkerton instruction to

the jury, which served to relieve the Government of its burden of

proof on essential elements of the crime. Further, his claim

concerning the § 846 and § 841(a)(1)(A) conviction pertains only

to requisite criteria for imposition of the sentence, and not as

to his factual innocence. Again, similar claims were raised by

Petitioner in his earlier § 2255 motion brought before the

sentencing court. 

 Schlup v. Delo, 513 U.S. 298, 327 (1995). 3

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Therefore, Petitioner has failed to demonstrate

circumstances that would render § 2255 an inadequate or

ineffective remedy. As stated above, Petitioner fails to show

any intervening change in the law that renders non-criminal the

counts for which he was convicted. For the same reasons,

Petitioner’s arguments also fail to demonstrate any circumstances

amounting to a “complete miscarriage of justice” that would

justify application of the safety-valve language of § 2255 rather

than its gatekeeping requirements. Therefore, this Petition must

be considered a second or successive motion under § 2255, which

Petitioner has not received authorization to file, and over which

this Court lacks jurisdiction. 28 U.S.C. § 2255. 4

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

 Although this Court is reclassifying the petition as a 4

§ 2255 motion, no Miller notice and order is necessary to afford

Petitioner an opportunity to raise additional § 2255 grounds. 

The purpose of the Third Circuit’s decision in United States v.

Miller, 197 F.3d 644 (3d Cir. 1999), was to provide fair warning

to petitioners whose petitions were being recharacterized as

§ 2255 motions so that they could ensure that all their claims

were fully raised in a single all-encompassing § 2255 petition. 

Such warning, the Miller court reasoned, is necessary because

petitioners will thereafter be unable to file “second or

successive” § 2255 petitions without certification by the Court

of Appeals. Because Petitioner in this case already has filed an

earlier § 2255 motion, and a Rule 60(b) motion that was construed

as a second or successive § 2255 motion, both of which were

addressed by the sentencing Court, and because the current

petition is itself “second or successive,” no purpose would be

served by a Miller notice.

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which the action ... could have been brought at the time it was

filed.” 28 U.S.C. § 1631.

This Court finds that it would not be in the interests of

justice to transfer this Petition to the Eleventh Circuit given

the considerable amount of time that has elapsed from

Petitioner’s last § 2255 motion, which shows lack of diligence on

Petitioner’s part in this case. Accordingly, this Petition will

be dismissed for lack of jurisdiction.

III. CONCLUSION

For the reasons set forth above, this habeas action will be

dismissed with prejudice for lack of subject matter jurisdiction,

because it is a second or successive § 2255 motion challenging

petitioner’s federal sentence. An appropriate order follows.

 s/ Noel L. Hillman 

NOEL L. HILLMAN

 United States District Judge

At Camden, New Jersey

Dated: March 2, 2012

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