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Urena v. Ebbert

United States District Court, M.D. Pennsylvania

February 20, 2014

JOSE RAFAEL URENA, Petitioner,
v.
WARDEN DAVID EBBERT, Respondent.

MEMORANDUM

JOHN E. JONES, III, District Judge.

Jose Rafael Urena ("Petitioner" or "Urena") filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241.[1] (Doc. 1). In the Petition, Urena challenges his conviction and sentence he received in the United States District Court for the Southern District of New York. ( Id. ).

For the reasons set forth herein, we will dismiss the Petition for lack of jurisdiction.

II. Factual Background[2]

Urena was convicted in the United States District Court for the Southern District of New York after a trial in which the jury found him guilty of conspiracy to commit robberies of drug dealers, robbery, and conspiracy to distribute five kilograms and more of cocaine. ( USA v. Urena, 1:05-cr-00760-04, Doc. 182 "Judgment" (S.D.N.Y)). The District Court denied Urena's motions for a new trial or a judgment of acquittal. USA v. Urena, 2012 U.S. Dist. LEXIS 133289, *1 (S.D.N.Y. 20012). Urena received a sentence of 162 months imprisonment on the three counts, with all to run concurrently. ( Id. ). The United States Court of Appeals for the Second Circuit affirmed Urena's conviction and sentence. USA v. Urena, 393 Fed.Appx. 801 (2d Cir. 2010) (summary order).

On March 5, 2012, Urena filed a Motion to Vacate under 28 U.S.C. § 2255 in the Southern District of New York. ( Urena v. USA, 1:12-cv-1608, Doc. 1 "Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody" (S.D.N.Y.)). In a Memorandum and Order dated September 13, 2012, the District Court denied Urena's § 2255 motion. ( Id. at Doc. 11 "Memorandum and Order"; see also Doc. 12 "Clerk's Judgment"). On May 21, 2013, the Second Circuit denied Urena's appeal of the District Court's denial of his § 2255 motion. ( Id. at Doc. 15 "Mandate of USCA").

On October 9, 2013, Urena filed a Motion for Relief from a Final Judgment or Order Under Rule 60(b)(3) & (6) and 60(d)(1) in the Southern District of New York. ( USA v. Urena, 1:05-cr-00760-04, Doc. 213). On October 30, 2013, the District Court issued an order construing this motion as a second or successive motion made pursuant to 28 U.S.C. § 2255. ( Id. at Doc. 214 "Order"). The District Court also directed Urena to inform the Court within sixty (60) days if he did not wish to pursue this motion as one made pursuant to § 2255. ( Id. ). On November 14, 2013, Urena filed his motion as one under 28 U.S.C. § 2255. ( Id. at Doc. 215 "Motion to Vacate Under § 2255"). By Order dated November 26, 2013, the District Court transferred Urena's second or successive § 2255 motion to the Second Circuit citing 28 U.S.C. § 1631 and Liriano v. United States, 95 F.3d 119, 122-23 (2d Cir. 1996) ( per curiam ). ( Id. at Doc. 216 "Order"). On January 28, 2014, the Second Circuit issued an Order notifying Urena that his Petition would be denied effective February 18, 2014 if he failed to file his application to file a second or successive motion or petition for writ of habeas with the Second Circuit.[3] ( Urena v. USA, 13-4511, Doc. 6 "Order" (2d Cir.)).

On January 24, 2014, Urena filed his current Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 in this Court. (Doc. 1).

III. Standard of Review

Habeas corpus petitions are subject to summary dismissal pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts, 28 U.S.C. foll. § 2254 (1977) (applicable to § 2241 petitions through Rule 1(b)). See, e.g., Patton v. Fenton, 491 F.Supp. 156, 158-59 (M.D.Pa.1979). Rule 4 provides, in pertinent part, "If it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court, the judge must dismiss the petition and direct the clerk to notify the petitioner." A petition may be dismissed without review of an answer "when the petition is frivolous, or obviously lacking in merit, or where... the necessary facts can be determined from the petition itself." Allen v. Perini, 424 F.2d 134, 141 (6th Cir.1970), cert. denied, 400 U.S. 906 (1970). The Allen court also stated that "the District Court has a duty to screen out a habeas corpus petition which should be dismissed for lack of merit on its face." Id.

Motions filed pursuant to 28 U.S.C. § 2255 are the exclusive means by which a federal prisoner can challenge a conviction or sentence that allegedly is in violation of the Constitution or federal laws, or that is otherwise subject to collateral attack. Davis v. United States, 417 U.S. 333, 343 (1974): United States ex rel. Leguillou v. Davis, 212 F.2d 681, 693 (3d Cir.1954). Habeas relief under 28 U.S.C. § 2241 is only available to a petitioner if a § 2255 motion is "inadequate or ineffective to test the legality of his detention." See 28 U.S.C. § 2255(e); see also Okereke v. United States, 307 F.3d 117, 120 (3d Cir. 2002); In re Dorsainvil, 119 F.3d 245, 251 (3d Cir. 1997).

"It is the inefficacy of the remedy, not the personal inability to use it, that is determinative." Cradle v. United States, 290 F.3d 536, 538 (3d Cir.2002). "Section 2255 is not inadequate or ineffective merely 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." Id. at 539. Rather, the "safety valve" provided under § 2255 is extremely narrow and has only been applied in unusual situations, such as those in which a prisoner has had no prior opportunity to challenge his conviction for conduct later deemed to be noncriminal by a change in law. Okereke, 307 F.3d at 120 ( citing In re Dorsainvil, 119 F.3d at 251) (emphasis added).

Applying the foregoing principles here, we find that Urena is clearly challenging the conviction and sentence he received from the Southern District of New York. As such, the Petition should be brought pursuant to § 2255, not § 2241.

Urena claims he should be able to pursue his Petition under § 2241, arguing that a § 2255 motion is inadequate and ineffective. ( See ...


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