Burks v. Stewart

Filing 6

MEMORANDUM OPINION and ORDER dismissing 1 Petition for Writ of Habeas Corpus; declining to issue a certificate of appealability; denying as moot 2 Motion to Expedite and 5 Motion for Grant of Release on Personal Recognizance; directing Clerk to close the case. Signed by Judge Theodore D. Chuang on 6/11/2018. (c/m on 6/12/18 nu, Deputy Clerk)

UNITED STATES DISTRICT COURT
DISTRICT OF MARYLAND

JAMES KIRBY BURKS, JR.,
Petitioner,
Civil Action No. TDC-18-0577

v.
TIMOTHY S. STEWART,
Respondent.

MEMORANDUM ORDER
Petitioner James Kirby Burks, Jr., an inmate at the Federal Correctional Institution in
Cumberland, Maryland (FCI-Cumberland),
pursuant to 28 U.S.C.

S

has filed a Petition for a Writ of Habeas Corpus

2241 in which he seeks his immediate release, as well as a Motion to

Expedite the resolution of his Petition.

He has also filed a Motion for Grant of Release on

Personal Recognizance, in which he seeks release pending resolution of the Petition.

For the

reasons set forth below the Petition is DISMISSED, and the Motions are DENIED.
BACKGROUND
In 1994, Burks was convicted after a jury trial in the United States District Court for the
Eastern District of Virginia of conspiracy to distribute and possess with the intent to distribute
more than 50 grams of cocaine base (crack cocaine), in violation of 21 U.S.C.
U.S.C.

S

841(a)(l)

and (b)(l)(A)(iii),

S

846 and 21

and for engaging in a continuing criminal enterprise

("CCE") in which he supervised five or more persons, in violation of 21 U.S.C.

S 848.

On June

3, 1994, the Court imposed two concurrent life sentences, which were within the applicable
guideline range under the United States Sentencing Guidelines.

On direct appeal, Burks asserted that his convictions were multiplicitous because the
conspiracy and overt acts alleged were the predicate offenses used to support the CCE charge.
The United States Court of Appeals for the Fourth Circuit agreed, vacated the conspiracy
conviction,

and remanded the case to the district court with instructions

conviction.

United States v. Burks, 85 F.3d 617,1996 WL 228806, at *1 (4th Cir. Apr. 29,1996)

(unpublished).

However, the Fourth Circuit affirmed the CCE conviction.

to dismiss that

Because the life

sentence imposed on that charge was itself within the applicable guidelines range, the court
declined to order that Burks be re-sentenced.

The United States Supreme Court denied Burks's

petition for a writ of certiorari. Burks v. United States, 85 U.S. 617 (1996).
In 1997, Burks filed a Motion to Vacate, Set Aside, or Correct the Sentence under 28
U.S.C.

S 2255,

which was denied by the district court. On January 28, 1998, the Fourth Circuit

denied a certificate of appealability and dismissed Burks's appeal of the denial of his

S

2255

motion. United States v. Burks, 134 F.3d 364, 1998 WL 29510, at *1 (4th Cir. Jan. 28, 1998)
(unpublished).
DISCUSSION
A prisoner may file a petition for a writ of habeas corpus pursuant to 28 U.S.C.

S 2241

in

order to challenge the calculation or execution of the sentence. In re Vial, 115 F.3d 1192, 1194
n.5 (4th Cir. 1997) (en banc). Burks claims that he is challenging the execution of his sentence
based on his allegation that his sentence was supposed to expire on May 22, 2017, yet he remains
in custody. However, a review of his Petition reveals that his arguments are based entirely on his
claims that his conviction
enhancements

and sentence were invalid, including

that certain sentencing

were improperly applied, such that his life sentence exceeded the applicable

guideline range.

Thus, Burks is essentially attacking the validity of his underlying sentence, not

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its execution.

See Castro v. United States, 540 U.S. 375, 381 (2003) (recognizing that courts

may recharacterize
correspondence

the legal label a pro se litigant attaches to a motion "to create a better

between the substance of a pro se motion's

claim and its underlying legal

basis").
Ordinarily,

the legality of a federal prisoner's

conviction

and sentence must be

challenged under 28 U.S.C. ~2255 unless the remedy available through a ~ 2255 motion "is
inadequate or ineffective to test the legality of his detention," an exception referred to as the ~
2255 "savings clause." 28 U.S.C. ~ 2255(e) (2012); see In re Vial, 115 F.3d at 1194. In such a
case, an inmate may proceed under ~ 2241 to challenge his conviction.

In re Jones, 226 F.3d

328, 333 (4th Cir. 2000).
The savings clause is applicable "in only very limited circumstances."

United States v.

Poole, 531 F.3d 263,269 (4th Cir. 2008) (citation omitted). "(T]he remedy afforded by ~ 2255
is not rendered inadequate or ineffective merely because an individual has been unable to obtain
relief under that provision or because an individual is procedurally barred from filing a ~ 2255
motion." In re Vial, 115 F.3d at 1194 n.5 (internal citations omitted). Rather, a ~ 2255 motion is
inadequate and ineffective to test the legality of a conviction when:
(1) at the time of conviction, settled law of this circuit or the Supreme Court
established the legality of the conviction; (2) subsequent to the prisoner's direct
appeal and first ~ 2255 motion, the substantive law changed such that the conduct
of which the prisoner was convicted is deemed not to be criminal; and (3) the
prisoner cannot satisfy the gatekeeping provisions of ~ 2255 because the new rule
is not one of constitutional law.
In re Jones, 226 F.3d at 333-34.

Thus, the applicability of the ~ 2255 savmgs clause is

"confined to instances of actual innocence of the underlying offense of conviction," not the
inapplicability of a sentencing factor.

Darden v. Stephens, 426 F. App'x 173, 174 (4th Cir.

2011) (refusing to extend the savings clause to reach a petitioner's claim that he was "innocent"
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of being classified as a career offender under the Sentencing Guidelines).
precedent

"Fourth Circuit

has likewise not extended the reach of the savings clause to those petitioners

challenging only their sentence." See Poole, 531 F.3d at 267 n.7. Otherwise, the statutory limit

S 2255

on second and successive

motions would be meaningless. See 28 U.S.C.

Here, Burks seeks habeas relief under
has previously filed a

S 2255

S 2241

S 2255(h).

by way of the savings clause because he

motion. His Petition alleges that his sentence violates the Double

Jeopardy Clause of the Fifth Amendment, that he was improperly assigned a four-level increase
in his offense level, which resulted in a guideline range of life imprisonment, and that as a result,
the Warden of FCI-Cumberland is "guilty of false imprisonment and violations of Petitioner's
Fifth Amendment right to due process due to the execution of an unconstitutional judgment."
Pet. at 22, ECF NO.1-I.

Burks does not establish that his Petition meets the criteria set forth in

Jones that would justify a

S 2241

petition. His citations of Apprendi v. New Jersey, 530 U.S. 466

(2000), and Alleyne v. United States, 570 U.S. 99 (2013), which addressed the proof requirement
for facts that increase the statutory maximum penalty, Apprendi, 530 U.S. at 490; Alleyne, 570
U.S. at 116, are unpersuasive because none of the sentencing enhancements referenced in the
Petition, or the facts underlying those enhancements,
minimum

sentences.

imprisonment).

See 21 U.S.C.

S

increased the statutory maximum

848(a) (setting the maximum

sentence

Accordingly, he may not challenge his conviction and sentence through a

petition. The Court will therefore dismiss the Petition.

or

as life

S 2241

As a result, the Motion to Expedite and

the Motion for Grant of Release on Personal Recognizance are now moot and thus will be
denied.
A certificate of appealability may issue if the prisoner has made a "substantial showing of
the denial of a constitutional right."

28 U.S.C.

4

S

2253(c)(2).

When a petition is denied on

procedural grounds, the petitioner meets the standard with a showing that reasonable jurists
"would find it debatable whether the petition states a valid claim of the denial of a constitutional
right" and "whether the district court was correct in its procedural ruling."

Slack v. McDaniel,

529 U.S. 473,484 (2000). Here, the Court finds that Burks has not made the requisite showing.
The Court therefore declines to issue a certificate of appealability.

Burks may still request that

the United States Court of Appeals for the Fourth Circuit issue such a certificate.

See Lyons v.

Lee, 316 F.3d 528, 532 (4th Cir. 2003) (considering whether to grant a certificate of appealability
after the district court declined to issue one).
CONCLUSION
For the foregoing reasons, it is hereby ORDERED that Burks's Petition for a Writ of
Habeas Corpus is DISMISSED.

The Court declines to issue a certificate of appealability.

The

Motion to Expedite, ECF No.2, and the Motion for Grant of Release on Personal Recognizance,
ECF No.5, are DENIED AS MOOT.

The Clerk shall close the case.

Date: June 11,2018
THEODORE D. CHUAN
United States District J

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