Opinion
Civil No. 01-1382 (JBS).
May 7, 2002
Mr. Rodolfo Fernandez, Fort Dix, NJ, Petitioner pro se.
Christopher J. Christie, United States Attorney, Irene E. Dowdy, Assistant U.S. Attorney, Trenton, NJ, Attorneys for Respondent.
OPINION
This matter comes before the Court upon the United States's motion to dismiss petitioner Rodolfo Fernandez's application for writ of habeas corpus under 28 U.S.C. § 2241. Mr. Fernandez, presently incarcerated at FCI Fort Dix, challenges his conviction and sentence as unconstitutional under the recent Supreme Court decision Apprendi v. New Jersey, 530 U.S. 466 (2000), alleging that the United States Attorney did not file or serve an Information under 21 U.S.C. § 851, that the sentencing judge rather than the jury determined the quantity of drugs upon which his sentence was calculated, and that the superseding indictment was jurisdictionally defective. As discussed below, because petitioner seeks relief that is available only under 28 U.S.C. § 2255, and because such claims may only be brought before the court that imposed the sentence, this Court is without jurisdiction to consider the habeas application. Accordingly, the respondent's motion to dismiss will be granted, and Mr. Fernandez's present petition will be dismissed for lack of jurisdiction.
BACKGROUND
Petitioner Rodolfo Fernandez was convicted by a jury in the United States District Court for the Eastern District of Virginia on two counts of a superseding indictment: (1) conspiracy tp distribute and to possess with intent to distribute cocaine, and to distribute and possess with intent to distribute 50 grams or more of crack, in violation of 21 U.S.C. § 846; and (2) possession with intent to distribute 50 grams or more of crack, in violation of 18 U.S.C. § 2 and 21 U.S.C. §§ 841(a)(1). (Judgment, Resp't's Br. Ex. 2.) On May 24, 1991, that court sentenced petitioner to 188 months imprisonment for each count, to be run concurrently, followed by five years of supervised release. (Id.)
Petitioner took a direct appeal to the United States Court of Appeals for the Fourth Circuit, contending that the evidence at trial was insufficient to sustain his conviction, and that the district court abused its discretion by admitting certain bad act evidence. (United States v. Fernandez, 981 F.2d 1252 (Table) (4th Cir. 1992), 1992 WL 374022 (4th Cir. Dec. 21, 1992) (unpublished opinion), Resp't's Br. Ex. 4.) The Fourth Circuit affirmed the judgment of the district court, concluding that petitioner's claims lacked merit. (Id. at *1.)
In 1998, petitioner filed a motion in the sentencing court under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. (Order and Memorandum Opinion, United States v. Fernandez, Crim. No. 90-348-A (E.D. Va. Mar. 25, 1998), Resp't's Br. Ex. 5.) On March 25, 1998, the sentencing court denied petitioner's motion, concluding that petitioner was "entitled to no relief" on his claim of improper application of the sentencing guidelines and his attempt to seek a downward departure. (Id.) Petitioner subsequently filed a motion with the United States Court of Appeals for the Fourth Circuit, pursuant to 28 U.S.C. § 2244, for certification to file a successive application for post-conviction relief. (Order, In Re: Rodolfo Fernando Fernandez, No. 00-763, CR-90-348-A (4th Cir. Sept. 15, 2000), Resp't's Br. Ex. 6.) On or around September 15, 2000, the Fourth Circuit denied petitioner's application for certification. (Id.)
On June 8, 2001, petitioner filed the present application for writ of habeas corpus under 28 U.S.C. § 2241 in this Court, claiming that his conviction and sentence were invalid under the recent Supreme Court decision Apprendi v. New Jersey, 530 U.S. 466 (2000), which he asserts is retroactively applicable. The United States filed this motion to dismiss on October 12, 2001.
I. DISCUSSION
Petitioner argues in his § 2241 habeas petition that he was denied due process and equal protection of the law because the United States Attorney did not file or serve an Information under 21 U.S.C. § 851, the sentencing judge rather than the jury determined the quantity of drugs upon which his sentence was calculated, and the superseding indictment was jurisdictionally defective.
A. Jurisdiction
A habeas petitioner who seeks to challenge the legality of his sentence must file a habeas corpus petition under 28 U.S.C. § 2255 with the sentencing court, while a petitioner who challenges the execution or manner of his sentence must file a petition under § 2241 in the custodial court. See Martinez Diaz v. Olsen, 110 F. Supp. 2d 295, 298-99 (D.N.J. 2000) (citing Wright v. United States Bd. of Parole, 557 F.2d 74, 77 (6th Cir. 1977)). A petition brought under § 2241 challenges the very fact or duration of physical imprisonment, and seeks a determination that the petitioner is entitled to immediate release or a speedier release from that imprisonment. Preiser v. Rodriguez, 411 U.S. 475, 484-85, 500 (1973); see also Benson v. New Jersey State Parole Bd., 947 F. Supp. 827, 829-31 (D.N.J. 1996) (noting that § 2241 is generally appropriate only for claims challenging continued execution of sentence for which immediate or speedier release is appropriate). Section 2241 claims concern a prisoner's incarceration after the fact of conviction and sentencing, including continued incarceration after the scheduled release date, parole hearing issues, or misconduct within the prison system. See Martinez Diaz, 110 F. Supp. 2d at 299.
A motion seeking to vacate, correct or set aside a sentence, however, is more appropriately brought under 28 U.S.C. § 2255. 28 U.S.C. § 2255 states:
Congress amended 28 U.S.C. § 2255 as part of the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 ("AEDPA"). As of its effective date of April 24, 1996, AEDPA requires that 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 was created by unlawful government action; (3) the date on which a right asserted by the movant was first recognized by the Supreme Court and made retroactive to cases pending on collateral review; or (4) the date on which the movant could have discovered the facts supporting the claim(s) presented through the exercise of due diligence.
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 (emphasis added). Section 2255 claims concern a prisoner's trial and sentencing, including claims such as ineffective assistance of counsel, misapplication of the sentencing guidelines, or the constitutionality of trial. See Martinez Diaz, 110 F. Supp. 2d at 299 (citing United States v. DeRewal, 10 F.3d 100 (3d Cir. 1993) (asserting ineffective assistance of counsel claim under § 2255), cert. denied, 511 U.S. 1033 (1994); United States v. Marmolejos, 140 F.3d 488 (3d Cir. 1998) (attacking the misapplication of the sentencing guidelines under § 2255)).
Here, petitioner asserts in his habeas petition that he was denied due process and equal protection of the laws because the United States Attorney failed to file an Information pursuant to 21 U.S.C. § 851, the sentencing court rather than a jury determined the drug quantity attributable to petitioner, and the indictment was jurisdictionally defective because "the penalty statute has been omitted from the indictment." Hab. Pet. at 13. In this case, petitioner is not seeking a determination that he is entitled to immediate release or that speedier release is appropriate. In addition, Mr. Fernandez does not raise parole hearing issues, misconduct within the prison system, or any issue related to his incarceration after sentencing. Rather, all of petitioner's claims challenge the legality of his sentence and/or conviction, not the fact or condition of his imprisonment. Although petitioner filed his present application as a motion under § 2241, this Court finds that the petitioner in his present application is simply seeking to challenge the sentence imposed by the trial court. Because such claims are more appropriately brought under 28 U.S.C. § 2255, petitioner's claims should have been brought as a § 2255 petition in the court that imposed his sentence. Accordingly, this Court lacks jurisdiction to consider Mr. Fernandez's § 2241 petition.
21 U.S.C. § 851 provides that "[n]o person who stands convicted of an offense under this part shall be sentenced to increased punishment by reason of one or more prior convictions, unless before trial, or before entry of a plea of guilty, the United States attorney files an information with the court (and serves a copy of such information on the person or counsel for such person) stating in writing the previous convictions to be relied upon." 21 U.S.C. § 851. Furthermore, the government accurately points out that petitioner's one prior conviction had been presented in his presentence report, see Resp't's Br. Ex. 7 ¶ 24, but that petitioner's criminal history remained at category I, see id. ¶ 44. Petitioner's prior conviction thus did not increase his Criminal History Category, and therefore did not affect his sentence. See id. at Worksheet A.
Furthermore, it is noted that petitioner had previously brought a motion under § 2255 to vacate, set aside, or correct his sentence in the sentencing court in 1998, and had subsequently applied to the United States Court of Appeals for the Fourth Circuit for leave to file a second § 2255 application for post-conviction relief, which the Fourth Circuit denied in 2000.See Resp't's Br. Ex. 6. Section § 2255 ¶ 8(2) requires such certification, providing that "[a] second or successive motion must be certified as provided in section 2244 by a panel of the appropriate court of appeals to contain . . . a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable." 28 U.S.C. § 2255 ¶ 8(2). Thus, petitioner may bring a successive § 2255 petition in the appropriate court only if the Fourth Circuit certifies the petition as containing a new rule which the Supreme Court has held to be retroactively applicable.
1. Petitioner's Dorsainvil Claim
Petitioner argues that he "can use [§ 2241] to seek relief on his claim [because] the use of [§ 2255] will render Petitioner's claim inadequate and ineffective." (Pet'r's Memo., 12/3/01, at 5.) Section 2255 provides a savings clause for certain claims:
An application for writ of habeas corpus on 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 ¶ 5. The Third Circuit recognized in In re Dorsainvil, 119 F.3d 245, 251 (3d Cir. 1997), that there may be some rare situations in which a prisoner who cannot satisfy the gatekeeping requirements of § 2255 should be permitted to proceed under § 2241. See Dorsainvil, 119 F.3d at 251. InDorsainvil, two years after the sentencing court had denied petitioner's § 2255 application based on ineffective assistance of counsel, the Supreme Court issued Bailey v. United States, 516 U.S. 137 (1995), which construed 18 U.S.C. § 924(c)(1), the statute under which petitioner had been sentenced. As a result of the "intervening change in substantive law" in Bailey, petitioner's criminal conduct would have been negated. Id. at 251. Thus, according to the Third Circuit in Dorsainvil, a court may consider a habeas petition brought under § 2241 where "a prisoner had no earlier opportunity to challenge his conviction for a crime," id., thus rendering § 2255 relief ineffective to address a change of law that decriminalized the conduct for which the petitioner was imprisoned. See id. at 251.
The Dorsainvil exception is a narrow one, however. The Third Circuit emphasized that a prisoner's inability or failure to comply with the general gatekeeping requirements of § 2255 generally does not render § 2255 "inadequate or ineffective" so as to permit resort to § 2241, noting that such a holding "would effectively eviscerate Congress's intent in amending § 2255."Id. at 251.
In the instant matter, petitioner claims that he was denied due process and equal protection of the law because the United States Attorney did not file or serve an Information under 21 U.S.C. § 851, the sentencing judge rather than the jury determined the quantity of drugs upon which his sentence was calculated, and the superseding indictment was jurisdictionally defective. Petitioner cites to Apprendi v. New Jersey, 530 U.S. 466 (2000), as the primary basis of his claims in this present § 2241 petition, claiming that "the holding of the Supreme Court decision establishes the Petitioner was convicted for a non-existent offense." (Pet'r's Memo., 12/3/01, at 5.) Petitioner claims that he had no earlier opportunity to challenge his conviction and sentence because of the unavailability of Apprendi, which was issued after his first habeas petition was filed.
To the extent that petitioner asserts that Apprendi is retroactively applicable to his petition on collateral review, this Court agrees with respondent that petitioner's argument is misplaced. The Supreme Court has held that Apprendi is not retroactively applicable to cases on collateral review. See Tyler v. Cain, 533 U.S. 656 (2001). The Supreme Court in Tyler held that "made" means "held," and thus a new rule is made retroactive to cases on collateral review "only if this Court has held that the new rule is retroactively applicable to cases on collateral review." 533 U.S. at 662 (emphasis added). The Tyler Court specifically interpreted 28 U.S.C. § 2244(b)(2)(A), which, similar in wording to § 2255 ¶ 8, requires that
In addition, a prisoner's application for leave to file a successive § 2255 motion must be made to the "appropriate court of appeals" governing the district court in which the prisoner was initially convicted and sentenced. To the extent that Mr. Fernandez is attempting to seek leave to file a successive § 2255 motion, his petition to this Court, in the jurisdiction in which he is incarcerated, is thus inadequate.
A claim presented in a second or successive habeas corpus application under section 2254 that was not presented in a prior application shall be dismissed unless — . . . the applicant shows that the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.28 U.S.C. § 2244(b)(2)(A). Section 2255 ¶ 8(2), applicable to the instant matter, similarly provides that "[a] second or successive motion must be certified as provided in section 2244 by a panel of the appropriate court of appeals to contain . . . a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable." 28 U.S.C. § 2255 ¶ 8(2). Similar to § 2244(b)(2)(A), section 2255 refers to the retroactive applicability of a new rule as determined specifically by the Supreme Court. The Third Circuit, relying on Tyler, has also held that Apprendi is not retroactively applicable, for purposes of considering certification under § 2255 ¶ 8(2). See In re Turner, 267 F.3d 225, 227-28 (3d Cir. 2001). Thus, to the extent that petitioner argues that the retroactivity ofApprendi applies to render his conviction and sentence unconstitutional, his argument is premature because the Supreme Court has not held Apprendi to be retroactively applicable to cases on collateral review.
Moreover, the Apprendi rule, which requires certain elements of a crime to be proven beyond a reasonable doubt rather than by a preponderance of the evidence, would not have decriminalized petitioner's conduct. See Apprendi, 530 U.S. at 490 (holding that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be admitted to a jury, and proved beyond a reasonable doubt"). Unlike Dorsainvil, petitioner does not contend that he is incarcerated for conduct that was later decriminalized under federal statute. Furthermore, petitioner'sApprendi-based arguments do not raise claims of actual innocence, but rather, address the duration of the sentence imposed upon him. Moreover, even if Apprendi was retroactively applicable, where an individual receives a sentence of 240 months or less under § 841(a)(1), Apprendi would not apply in any event, because the sentence was not driven beyond the lowest statutory maximum under § 841(b), which is 240 months. United States v. Kelly, 272 F.3d 622, 623 (3d Cir. 2001). Although petitioner filed his present application as a motion under § 2241, the Court, finding that 28 U.S.C. § 2255 is the adequate vehicle to address petitioner's complaints, concludes that the limited use of the § 2255 savings clause under Dorsainvil is not available to petitioner in the instant matter.
CONCLUSION
Because petitioner's claims should have been brought as a § 2255 petition in the court that imposed his sentence, this Court lacks jurisdiction. Furthermore, because petitioner fails to demonstrate that the remedy by motion under § 2255 is not "inadequate or ineffective," the Dorsainvil exception is not applicable to petitioner's claims. Accordingly, the Court will grant respondent's motion to dismiss, and will dismiss petitioner's habeas application. The accompanying Order is entered.
ORDER
THIS MATTER having come before the Court upon respondent United States's motion to dismiss petitioner Rodolfo Fernandez's application for habeas corpus relief under 28 U.S.C. § 2241; and the Court having considered the parties' submissions; and for good cause shown;IT IS on this ____ day of April, 2002, hereby
ORDERED that respondent's motion to dismiss shall be, and hereby is, GRANTED ; and petitioner's habeas application shall be, and hereby is, DISMISSED for lack of subject matter jurisdiction.