# FRANKLIN v. ORTIZ

> District Court, D. New Jersey · July 6, 2020

URL: https://www.frixlaw.com/law-library/cases/10268503

## Case

- **Court:** District Court, D. New Jersey
- **Decided:** July 6, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10268503

## How later opinions describe it (automated extraction)

- explaining that courts may dismiss petitions where “none of the grounds alleged in the petition would entitle [the petitioner] to relief”
- explaining that courts may dismiss petitions where “none of the grounds alleged in the petition would entitle [the petitioner] to relief”

## Opinion text

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

JERMEL FRANKLIN,
Civil Action No. 18-13713 (RBK)

Petitioner,

v.
OPINION

DAVID ORTIZ,

Respondent.

ROBERT B. KUGLER, U.S.D.J.
Petitioner is a federal prisoner currently incarcerated at FCI Fort Dix, in Fort Dix, New
Jersey. He is proceeding pro se with an Amended Petition for a Writ of Habeas Corpus pursuant
to 28 U.S.C. § 2241 (“Petition”) (ECF Nos. 1, 3, 4). For the reasons set forth below, the Court
will dismiss the Petition without prejudice, for lack of jurisdiction.
I. BACKGROUND
The Court will construe the factual allegations in the Petition as true for the purpose of this
Opinion. According to Petitioner, in 2003, he pleaded guilty to conspiracy to commit murder
under 18 U.S.C. § 1959(a)(5). (United States v. Franklin, Crim. No. 99-1137, (E.D.N.Y.), ECF
No. 263). Thereafter, the United States District Court for the Eastern District of New York
sentenced Petitioner to, among other things, 87 months in prison, to run consecutively to a state
sentence Petitioner was serving at the time. The remaining procedural history is unclear, but it
appears that Petitioner has never filed a direct appeal or a motion under 28 U.S.C. § 2255.
On September 7, 2018, Petitioner filed his first petition arguing that his sentencing court
erred “when it found that [his] conviction under 18 U.S.C. § 1959(a)(5) for conspiracy to commit
murder in aid of racketeering was a ‘crime of violence’ that required it to increase [his] base
offense” level at sentencing. (ECF No. 1, at 6). Thereafter, in May and July of 2019, Petitioner
filed two supplemental memorandums in support of his Petition. In particular, Petitioner’s July 3,
2019 filing, raises a claim pursuant to United States v. Davis, 139 S. Ct. 2319 (2019), arguing that
his 18 U.S.C. § 1959(a)(5) conviction is no longer valid. (ECF No. 4).
Petitioner, however, did not pay the filing fee or submit a complete application to proceed
in forma pauperis, until he paid the filing fee on March 2, 2020. At which point, the Court

reopened this matter. The Court will construe Petitioner’s initial filing and two supplemental
memorandums as one amended § 2241 Petition (“Petition”). (ECF Nos. 1, 3, 4).
II. STANDARD OF REVIEW
Federal district courts have a pre-service duty under Rule 4 of the Rules Governing § 2254
Cases in the United States District Courts, which is applicable to § 2241 petitions pursuant to Rule
1(b), to screen and summarily dismiss a habeas petition prior to any answer or other pleading when
the petition “appears legally insufficient on its face.” McFarland v. Scott, 512 U.S. 849, 856
(1994); see also United States v. Thomas, 221 F.3d 430, 437 (3d Cir. 2000) (explaining that courts
may dismiss petitions where “none of the grounds alleged in the petition would entitle [the

petitioner] to relief”).
III. DISCUSSION
Petitioner challenges his conviction and sentence under 28 U.S.C. § 2241. Generally,
however, a person must bring a challenge to the validity of a federal conviction or sentence under
28 U.S.C. § 2255. See Jackman v. Shartle, 535 F. App’x 87, 88–89 (3d Cir. 2013) (citing Okereke
v. United States, 307 F.3d 117, 120 (3d Cir. 2002)). This is true because § 2255 prohibits a district
court from entertaining a challenge to a prisoner’s federal sentence through § 2241 unless the
remedy under § 2255 is “inadequate or ineffective.” See 28 U.S.C. § 2255(e). Indeed, § 2255(e)
states that:
An application for a writ of habeas corpus 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 a court has denied him relief, unless it also appears
that the remedy by the motion is inadequate or ineffective to test the
legality of his detention.

A § 2255 motion is “inadequate or ineffective,” which permits a petitioner to resort to a §
2241 petition, “only where the petitioner demonstrates that some limitation or procedure would
prevent a § 2255 proceeding from affording him a full hearing and adjudication of his wrongful
detention claim.” Cradle v. U.S. ex rel. Miner, 290 F.3d 536, 538 (3d Cir. 2002). However, §
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 . . . § 2255.” Id. at 539. “It is the inefficacy of the remedy, not the
personal inability to use it, that is determinative.” Id. at 538. “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 (citing In re Dorsainvil, 119 F.3d 245, 251–52 (3d Cir. 1997)).
In Dorsainvil, the Third Circuit held that the remedy under § 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.
Nevertheless, the Third Circuit emphasized that its holding was not suggesting that a §
2255 motion was “inadequate or ineffective” merely because a petitioner is unable to meet the
strict gatekeeping requirements of § 2255. See id.
Thus, under Dorsainvil and its progeny, this Court would have jurisdiction over the Petition
if, and only if, Petitioner alleges: (1) his “actual innocence,” (2) as a result of a retroactive change
in substantive law that negates the criminality of his conduct, and (3) for which he had no other
opportunity to seek judicial review. See Bruce v. Warden Lewisburg USP, 868 F.3d 170, 180 (3d
Cir. 2017); Okereke, 307 F.3d at 120; Cradle, 290 F.3d at 539; Dorsainvil, 119 F.3d at 251–52.
With those principles in mind, the Court will construe Petitioner’s claims as: (1) that his
sentencing court improperly increased his base offense level at sentencing; (2) that that court

deprived him of his right to allocution; and (3) that his conviction is no longer valid in light of
United States v. Davis, 139 S. Ct. 2319 (2019).
To the extent Petitioner claims that his sentencing court improperly increased his base
offense level under the sentencing guidelines, such claims do not fall within the Dorsainvil
exception. On this claim, Petitioner does not allege that he is “actually innocent” as a result of a
retroactive change in substantive law that negates the criminality of his conduct. Rather, Petitioner
claims that his “conviction under 18 U.S.C. § 1959(a)(5) for conspiracy to commit murder in aid
of racketeering” was not a “crime of violence” that required the Court “to increase [his] base
offense level” under the guidelines, U.S.S.G. § 2K2.1. (ECF No. 1, at 6).

Petitioner relies on United States v. McCollum, 885 F.3d 300, 309 (4th Cir. 2018), in which
the Fourth Circuit held that a conspiracy to commit murder conviction under § 1959(a)(5), “cannot
support [an] enhanced sentence” under U.S.S.G. § 2K2.1, “because it is not categorically a crime
of violence.” McCollum, 885 F.3d at 303, 309.
Such an argument does not fall within the Dorsainvil exception,1 because it argues that
Petitioner is actually innocent of a sentencing enhancement as opposed to being actually innocent
of the crime for which he was convicted. See, e.g., United States v. Brown, 456 F. App’x 79, 81
(3d Cir. 2012); Selby v. Scism, 453 F. App’x 266, 268 (3d Cir. 2011) (“Selby does not argue that

1 Notably, McCollum involved a direct appeal rather than a petition under § 2241. See McCollum,
885 F.3d 300, 309.
he is innocent of the offense for which he was convicted; he argues that he is ‘innocent’ of a
sentencing enhancement because of an intervening change in law. Accordingly, the exception
described in In re Dorsainvil does not apply.”); Maher v. Fed. Bureau of Prisons, No. 18-2348,
2018 WL 2095594, at *2 (D.N.J. May 7, 2018) (citing cases).
As to Petitioner’s claim that he was deprived of the right to allocution at sentencing, his

claim fails because § 2255 is not “inadequate or ineffective” to raise such claims. Prisoners may
challenge deprivations of their right to allocution with motions under § 2255. See, e.g., United
States v. Hammer, 564 F.3d 628, 632 (3d Cir. 2009) (citing Andrews v. United States, 373 U.S.
334 (1963)).
Similarly, this Court lacks jurisdiction to consider Petitioner’s Davis claim because § 2255
is not “inadequate or ineffective” to raise Davis claims. In Davis, the Supreme Court held that the
residual clause in 18 U.S.C. § 924(c)(3)(B), defining a “crime of violence,” was unconstitutionally
vague. Davis, 139 S. Ct. at 2336.
A number of Circuit Courts of Appeal, including the Third Circuit, have held or implicitly

held that Davis claims rely on a new rule of constitutional law, made retroactive to cases on
collateral review by the Supreme Court, that was previously unavailable.2 See United States v.
Reece, 938 F.3d 630, 635 (5th Cir. 2019); United States v. Bowen, 936 F.3d 1091, 1098 (10th Cir.
2019); In re Matthews, 934 F.3d 296 (3d Cir. 2019); In re Hammoud, 931 F.3d 1032, 1039 (11th

2 Although the Second Circuit does not appear to have ruled on the issue, some courts within that
Circuit have considered the issue and arrived at different conclusions. Compare Bonilla v. United
States, No. 07-0097, 2020 WL 489573, at *3 (E.D.N.Y. Jan. 29, 2020) (quoting Hammoud, 931
F.3d at 1039) (concluding “that Davis has been ‘made’ retroactively applicable to criminal cases
that became final before Davis was announced.”), with McPherson v. United States, No. 19-11036,
2020 WL 2765914, at *5 (S.D.N.Y. May 28, 2020).
Cir. 2019). Accordingly, those Courts have authorized numerous petitioners to pursue Davis
claims in second or successive § 2255 motions. Matthews, 934 F.3d at 298 n.2.
Additionally, Petitioner does not appear to have ever filed a § 2255 motion. As a result, if
he were to file such a motion, it may be timely under § 2255(f)(3), which allows him to file within
one year of “the date on which the right asserted was initially recognized by the Supreme Court,

if that right has been newly recognized by the Supreme Court and made retroactively applicable
to cases on collateral review.”
Consequently, because Petitioner could have pursued a Davis claim through a § 2255
motion, this Court lacks jurisdiction to consider such a claim under § 2241. Cradle, 290 F.3d at
539. In other words, the proper vehicle for a Davis claim is a motion under § 2255, with one’s
sentencing court. See Reece, 938 F.3d at 635.
Whenever a party files a civil action 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. The Court finds that it is not

in the interest of justice to transfer this matter to Petitioner’s sentencing court.
Petitioner’s allocution and sentencing guidelines claims regarding his 2003 conviction
would be untimely. 28 U.S.C. § 2255(f). Moreover, even assuming that Petitioner’s sentencing
guidelines argument under McCollum is correct, McCollum is not a Supreme Court case. As a
result, it would not have provided Petitioner with an additional year to file his first § 2255 motion.
28 U.S.C. § 2255(f)(3). That said, Petitioner erroneously contends that McCollum was an
“intervening change in substantive law” in this case. (ECF No. 3, at 3). Petitioner’s sentencing
court is within the Second Circuit, and “McCollum . . . as a decision of the Fourth Circuit, . . .
constitute[s] merely persuasive authority.” See Mayes v. United States, No. 12-0385, 2019 WL
2912758, at *3 (E.D.N.Y. July 8, 2019).
Finally, the Court finds that it is not in the interest of justice to transfer Petitioner’s Davis
claim, because it does not appear that Davis applies in this case. Davis held that the residual clause
under § 924(c)(3)(B), was unconstitutional. Petitioner was initially charged under § 924(c) but
was never convicted under § 924(c). Petitioner pleaded guilty only to conspiracy to commit murder
under 18 U.S.C. § 1959(a)(5). (Franklin, Crim. No. 99-1137, (E.D.N.Y.), ECF No. 263).

Furthermore, assuming arguendo, that Davis invalidated the “crime of violence” language
in § 1959(a)(4), Petitioner was convicted under § 1959(a)(5), which does not contain such
language. Cf. United States v. Brown, No. 90-113, 2019 WL 3538948, at *3 (E.D. Va. Aug. 2,
2019), appeal dismissed, 794 F. App’x 343 (4th Cir. 2020). Petitioner was convicted of
“conspiring to commit murder,” an enumerated offense under § 1959(a)(5), “not an unspecified
crime of violence.” (Franklin, Crim. No. 99-1137, (E.D.N.Y.), ECF No. 263); cf. Brown, 2019
WL 3538948, at *3. Consequently, even under Petitioner’s theory, Davis does not apply in this
case.
Accordingly, the Court declines to transfer the Petition. However, this Court’s decision

does not prevent Petitioner from filing a § 2255 motion on his own, with his sentencing court, the
United States District Court for the Eastern District of New York.
IV. CONCLUSION
For the foregoing reasons, the Court will dismiss the Petition without prejudice, for lack of
jurisdiction. An appropriate Order follows.

DATED: July 1, 2020 s/Robert B. Kugler
ROBERT B. KUGLER
United States District Judge

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10268503. Public record. Not legal advice.