WALKER v. KIRBY
OPINION. Signed by Judge Noel L. Hillman on 6/6/2016. (tf, n.m.)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
FAIRTON WARDEN KIRBY,
Civ. No. 16-561 (NLH)
Byron Walker, # 46692-004
P.O. Box 420
Fairton, NJ 08320
Petitioner Pro se
HILLMAN, District Judge
Petitioner Byron Walker, a prisoner confined at the Federal
Correctional Institution (“FCI”) in Fairton, New Jersey, filed
this writ of habeas corpus under 28 U.S.C. § 2241, challenging
his conviction and sentence. (ECF No. 1).
On February 8, 2016,
the Court administratively terminated this action due to
Petitioner’s failure to satisfy the filing fee requirement. (ECF
On or about February 16, 2016, Petitioner paid the $5
filing fee and this matter was reopened for review by a judicial
Petitioner names as party respondent, the Warden at
FCI Fairton pursuant to 28 U.S.C. § 2242.
Because it appears
from a review of the Petition that this Court lacks jurisdiction
under 28 U.S.C. § 2241, the Petition will be dismissed without
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 provides little information in his Petition.
does not specify the charges for which he was convicted and
states only that he was sentenced by the United States District
Court for the Southern District of Florida on June 2, 1995.
(Pet. 1, ECF No. 1).
He further states that he filed two
appeals, which were denied on September 2, 1999 and April 21,
2000, as well as a writ of certiorari to the United States
Supreme Court, which he filed on May 2, 2000, and was
subsequently denied. (Id. at 2, 3).
Petitioner also filed a
motion under 28 U.S.C. § 2255 challenging his conviction and
sentence, which the United States District Court for the
Southern District of Florida denied on May 16, 2002. (Id. at 4).
Due to the limited information provided in the Petition,
this 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 search revealed
multiple post-conviction filings, including a § 2241 petition
filed before this Court.
The following factual and procedural
history is taken from this Court’s March 2, 2012 opinion
dismissing a previous § 2241 habeas petition for lack of
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 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
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, 121 S. Ct. 97, 148
L.Ed.2d 56 (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
(2) that his Fifth Amendment right of due process and
his Sixth 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, 120 S. Ct. 2348, 147 L.Ed.2d 435 (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 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 (11th Cir. 2009); United States v.
Winston, 2009 WL 3080848 (11th Cir. 2009).” (Id.,
Docket entry no. 41 at pp. 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
Walker v. Shartle, No. 11-4518 (NLH), 2012 WL 714448, at *1-2
(D.N.J. Mar. 2, 2012) (footnote omitted).
This Court also notes that in 2004 Petitioner filed a
petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241
before the United States District Court in the District of
Kansas alleging that his sentence should be reduced following
the decision of the United States Supreme Court in Castillo v.
United States, 530 U.S. 120, 120 S. Ct. 2090, 147 L.Ed.2d 94
(2000). Walker v. Gallegos, No. 05-3303-RDR (D. Kan.).
dismissing his petition, the United States District Court for
the District of Kansas held that the petition was essentially a
challenge to the validity of his sentence and Petitioner had not
properly invoked the safety valve 1 pursuant to § 2241 by showing
that the remedy under § 2255 was inadequate or ineffective.
Walker v. Gallegos, No. 05-3303-RDR, 2005 WL 1842747, at *1 (D.
Kan. Aug. 1, 2005).
In 2011, Petitioner filed a habeas petition pursuant to 28
U.S.C. § 2241 and/or 28 U.S.C. § 1651 before this Court,
challenging the constitutionality of his custody and the
As discussed in greater detail below, the “safety valve” of §
2255 permits a petitioner to resort to filing a petition under §
2241 in certain, limited circumstances.
execution of his sentence. Walker v. Shartle, No. 11-4518 (NLH)
(D.N.J. Aug. 5, 2011).
In that petition, he also asserted
claims of “Factual/Actual Innocence and Fundamental Miscarriage
of Justice” as exceptions that would permit him to seek habeas
On March 2, 2012, this Court dismissed the
habeas action for lack of jurisdiction, finding that it was a
prohibited second or successive motion under 28 U.S.C. § 2255.
Walker v. Shartle, No. 11-4518 NLH, 2012 WL 714448, at *1.
On or about May 12, 2014, Petitioner filed a second motion
pursuant to 28 U.S.C. § 2255 in the Southern District of
Florida. Walker v. United States, No. 14-21738, (S.D. Fl. May
In that motion, Petitioner claimed his sentence
should be vacated because of the Supreme Court’s ruling in
Alleyne v. United States, 133 S. Ct. 2151, 186 L. Ed. 2d 314
In an Order dated May 27, 2014, the United States
District Court for the Southern District of Florida adopted the
Report and Recommendation of the Magistrate Judge and dismissed
the petition as a second or successive motion under § 2255 for
which Petitioner had not sought authorization to file from the
Eleventh Circuit Court of Appeals. Final Judgment Dismissing
Motion, Walker v. United States, No. 14-21738 (S.D. Fl. May 27,
2014), ECF No. 7.
Petitioner then filed the instant habeas petition pursuant
to 28 U.S.C. § 2241 and asserts that he is actually innocent of
the 22 year enhancement imposed under 21 U.S.C. § 841(b)(1)(c).
(Pet. 6, ECF No. 1).
Petitioner further asserts that § 2255 is
inadequate or ineffective to challenge his conviction or
sentence because he was sentenced prior to the Supreme Court’s
decision in Burrage v. United States, 134 S. Ct. 881, 187 L. Ed.
2d 715 (2014).
For the reasons set forth below, the instant
Petition will be dismissed.
STANDARD OF REVIEW
United States Code Title 28, 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.
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 must be construed liberally. See
Hunterson v. DiSabato, 308 F.3d 236, 243 (3d Cir. 2002).
Nevertheless, a federal district court can dismiss a habeas
corpus petition if it appears from the face of the petition that
the petitioner is not entitled to relief. See Denny v. Schult,
708 F.3d 140, 148 n. 3 (3d Cir. 2013); see also 28 U.S.C. §§
A. Safety Valve
“It is axiomatic that federal courts are courts of limited
jurisdiction, and as such are under a continuing duty to satisfy
themselves of their jurisdiction before proceeding to the merits
of any case.” Packard v. Provident Nat. Bank, 994 F.2d 1039,
1049 (3d Cir. 1993) (citations omitted), cert. denied, 510 U.S.
946 (1993); see also Gunn v. Minton, 133 S.Ct. 1059, 1064
(2013); Bender v. Williamsport Area School District, 475 U.S.
534, 541 (1986).
Here, Petitioner has asserted jurisdiction
under 28 U.S.C. § 2241.
For the reasons set forth below, this
Court finds that it lacks jurisdiction to consider this
As noted by the Court of Appeals for the Third Circuit in
In re Dorsainvil, 119 F.3d 245, 249 (3d Cir. 1997), a motion to
vacate, set aside, or correct sentence under 28 U.S.C. § 2255
has been the “usual avenue” for federal prisoners seeking to
challenge the legality of their confinement. See also Okereke v.
United States, 307 F.3d 117, 120 (3d Cir. 2002); United States
v. McKeithan, 437 F. App'x 148, 150 (3d Cir. 2011); United
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).
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.” See 28 U.S.C.
In Dorsainvil, 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.”
Dorsainvil, 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 limitations or
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 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
The Court of Appeals for the Third Circuit subsequently
emphasized the narrowness of its Dorsainvil holding when it
rejected a district court's conclusion that § 2255 was
“inadequate or ineffective” to address a claim based on Apprendi
v. New Jersey, 530 U.S. 466, 490 (2000), an intervening decision
which held 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 submitted to a jury, and
proved beyond a reasonable doubt.” See Okereke, 307 F.3d at 12021 (in which the petitioner had been sentenced based upon a drug
quantity determined at sentencing by a judge using the
preponderance of evidence standard).
Similarly, § 2255 is not
“inadequate or ineffective” to address a claim based upon
Booker, 2 which is an extension of Apprendi. See Smith v. Nash,
145 F. App’x 727 (3d Cir. 2005), cert. denied, 126 S.Ct. (U.S.
Oct. 31, 2005).
In addition, the mere fact that a claim is time
barred does not render § 2255 an inadequate or ineffective
remedy. See Cradle v. United States, 290 F.3d 536, 539 (3d Cir.
United States v. Booker, 543 U.S. 220 (2005).
Motions under § 2255 must be made within one year of “(1) the
date on which the judgment of conviction becomes final; ... [or]
(3) 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, or (4) the date on
which the facts supporting the claim or claims presented could
have been discovered through the exercise of due diligence.”
Thus, under Dorsainvil and its progeny, this Court could
exercise § 2241 jurisdiction over this Petition 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. See Dorsainvil, 119 F.3d at
251–52; Cradle, 290 F.3d at 539; Okereke, 307 F.3d at 120;
Trenkler v. Pugh, 83 F. App'x 468, 470 (3d Cir. 2003).
Here, Petitioner has failed to bring his claim within the
As an initial matter, the Supreme Court’s decision in
Burrage did not decriminalize the conduct for which Petitioner
With respect to a challenge to the validity of a
conviction or sentence based on the Supreme Court’s decision in
Burrage, the Court of Appeals for the Third Circuit recently
We agree with the MDPA that this case is not one of
the rare instances where § 2255 would be inadequate or
ineffective. The Supreme Court’s decision in Burrage
did not decriminalize the conduct for which Dixon was
convicted. Rather, Burrage merely applied Apprendi v.
New Jersey, 530 U.S. 466 (2000), and one of Apprendi's
progeny, Alleyne v. United States, 133 S. Ct. 2151
(2013). See Burrage, 134 S. Ct. at 887. We have
previously held that a § 2255 motion is not an
inadequate or ineffective vehicle for raising an
Apprendi-based argument. See Okereke, 307 F.3d at 120–
21. Accordingly, the MDPA correctly concluded that
Dixon could not resort to § 2241 to raise his Burrage
claim, and the MDPA did not err in denying his motion
Dixon v. Warden of FCI Schuylkill, No. 15-4089, 2016 WL 1568147,
at *2 (3d Cir. Apr. 19, 2016) (footnote omitted); see also,
e.g., Rodriguez v. Warden Lewisburg USP, No. 15-3555, 2016 WL
1127869, at *3 (3d Cir. Mar. 23, 2016) (noting that Burrage did
not provide a basis for granting motion for reconsideration of
order dismissing petitioner’s § 2241 petition); Gibson v.
Thomas, No. 3:CV-14-0820, 2016 WL 213618, at *5 (M.D. Pa. Jan.
19, 2016) (holding that § 2241 petitioner’s argument based on
Burrage that he was improperly given a sentencing enhancement
was “insufficient to fall within the Dorsainvil exception
because it presents argument that he is factually innocent of a
sentencing enhancement as opposed to being factually innocent of
the crime for which he was convicted”) (citing United States v.
Brown, 456 F. App'x 79, 81 (3d Cir. 2012) (per curiam) (“We have
held that § 2255's ‘safety valve’ applies only in rare
circumstances, such as when an intervening change in the statute
under which the petitioner was convicted renders the
petitioner's conduct non-criminal.”).
Further, as described above, the Petitioner has filed
several other habeas petitions and at least two § 2255 petitions
in the Southern District of Florida — one of which was filed
after the Supreme Court rendered its decision in Burrage. See
Walker v. United States, No. 14-21738 (S.D. Fl. May 12, 2014).
He therefore had the opportunity to challenge the
constitutionality of his sentence in earlier proceedings.
For the reasons set forth above, Petitioner has failed to
bring this claim within the safety valve of § 2255, see
Dorsainvil, 119 F.3d at 251–52, and this Court lacks
jurisdiction to consider the Petition under § 2241.
the Petition is more appropriately characterized as a second or
successive motion under § 2255, which Petitioner has not
received authorization to file 4, and over which this Court also
If a “second or successive” habeas petition is filed in the
district court without authorization from the appropriate court
of appeals, the district court may dismiss for lack of
jurisdiction or transfer the petition to the court of appeals
pursuant to 28 U.S.C. § 1631. See Padilla v. Miner, 150 F. App'x
116 (3d Cir. 2005); Littles v. United States, 142 F. App'x 103,
104 n. 1 (3d Cir. 2005) (citing Robinson v. Johnson, 313 F.3d
128, 139 (3d Cir. 2002), cert. denied, 540 U.S. 826 (2003)).
However, because § 2244(b) is effectively “‘an allocation of
subject-matter jurisdiction to the court of appeals,’” Robinson
Petitioner makes no allegation that he sought, or received,
permission from the Eleventh Circuit to file a second or
successive motion under § 2255.
v. Johnson, 313 F.3d at 140 (quoting Nunez v. United States, 96
F.3d 990, 991 (7th Cir. 1996)), a district court may dismiss
such a petition only without prejudice. See Ray v. Eyster, 132
F.3d 152, 155–56 (3d Cir. 1997).
As Petitioner has already filed a § 2255 motion in the
trial court, and cannot file a second or successive motion
without leave of the appropriate Court of Appeals, this Court
must determine whether transfer of this Petition to the Court of
Appeals for the Eleventh Circuit, for consideration as an
application for leave to file a “second or successive” petition,
would be in the interest of justice.
Under 28 U.S.C. §§ 2244
and 2255, the Court of Appeals may authorize the filing of a
second or successive § 2255 motion only if it contains “(1)
newly discovered evidence that, if proven and viewed in light of
the evidence as a whole, would be sufficient to establish by
clear and convincing evidence that no reasonable factfinder
would have found the movant guilty of the offense, or (2) 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(h).
In this case, Petitioner does not allege as a ground for
relief any of those for which a Court of Appeals may authorize
the filing of a second or successive § 2255 petition.
instant Petition is premised entirely on the Supreme Court’s
holding in Burrage and, even assuming the holding is applicable
to the circumstances of Petitioner’s case, it is unlikely that
the Eleventh Circuit would grant Petitioner leave to assert his
claims under Burrage in a second or successive petition. See,
e.g., Alvarez v. Hastings, No. CV214-070, 2014 WL 4385703, at *1
(S.D. Ga. Sept. 5, 2014) report and recommendation adopted, No.
CV214-070, 2014 WL 5364189 (S.D. Ga. Oct. 21, 2014), appeal
dismissed (July 13, 2015) (“The Eleventh Circuit found that
Burrage did not set forth a new rule of constitutional law, but,
even if this decision had, the United States Supreme Court did
not expressly hold that Burrage is retroactively applicable to
cases on collateral review.”); see also 11th Cir. Order Denying
Application for Leave to File Successive 2255, Alvarez v. United
States, No. 214-070 (S.D. Ga. July 9, 2014) ECF No. 9-9.
Moreover, as set forth above, motions under § 2255 must be
made within one year of “(1) the date on which the judgment of
conviction becomes final; . . . [or] (3) 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 . .
.” 28 U.S.C. § 2255(f).
Burrage was decided on January 27,
2014; however, the instant Petition was not filed until January
27, 2016 5 — two years later.
Thus, it appears that Petitioner’s
Burrage claim is time barred as beyond the one-year statute of
limitations — despite the fact that during this one-year
timeframe he filed a second or successive § 2255 motion in the
Southern District of Florida based on entirely different
grounds. Walker v. United States, No. 14-21738 (S.D. Fl. May 12,
For these reasons, it would not be in the interest of
justice to transfer this Petition to the Court of Appeals for
the Eleventh Circuit.
For the foregoing reasons, the Petition for Writ of Habeas
Corpus, filed pursuant to 28 U.S.C. § 2241, will be dismissed
without prejudice for lack of jurisdiction.
An appropriate Order will be entered.
__s/ Noel L. Hillman_____
NOEL L. HILLMAN
United States District Judge
Dated: June 6, 2016
Camden, New Jersey
It is unclear whether the handwritten date of the Petition is
January 27, 2016 or January 28, 2016. See (Pet. 8, ECF No. 1);
see also Burns v. Morton, 134 F.3d 109, 113 (3d Cir. 1998)
(under the prison mailbox rule, “a pro se prisoner's habeas
petition is deemed filed at the moment he delivers it to prison
officials for mailing[.]”). For purposes of this Opinion, the
Court will assume the earlier date, January 27, is accurate;
however, use of the later date, January 28, does nothing to
change this Court’s analysis.
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