BURKE v. HOLLINGSWORTH

Filing 5

OPINION. Signed by Judge Renee Marie Bumb on 4/27/2017. (TH, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CAMDEN VICINAGE

ROBERT ANTHONY BURKE,
Petitioner,
v.
WARDEN JORDAN HOLLINGSWORTH,
Respondent,

:
:
:
:
:
:
:
:
:
:
:

Civ. Action No. 16-1290 (RMB)

OPINION

BUMB, District Judge
Petitioner,

Robert

Anthony

Burke

(“Burke”),

presently

incarcerated in FCI Fort Dix, in Fort Dix, New Jersey, filed a
petition for writ of habeas corpus under 28 U.S.C. § 2241, on
March

7,

2016,

sentence.

(Pet.,

seeking
ECF

prior

No.

opposing habeas relief.

1.)

custody

Respondent

Formal

Objection

Reply”), ECF No. 4.)

filed

against
an

his

Answer,

(Resp’s Answer to Pet. for a Writ of

Habeas Corpus (“Answer”), ECF No. 3.)
(Petr’s

credit

to

Burke filed a reply.

Government’s

Response

(“Petr’s

For the reasons discussed below, the Court

will deny the petition under the abuse of the writ doctrine.
I.

BACKGROUND
In

July

Correctional

1992,
Center

a
in

federal
Chicago

inmate
tried

to

at

the

escape

Metropolitan
from

custody

using a handcuff key provided by fellow prisoner Robert Anthony
Burke.

See

United

States

v.

Burke,

No.

09-2107,

2010

WL

1654966, at *1 (N.D. Ill. Apr. 22, 2010), aff’d, 400 F. App’x 81
(7th Cir. 2010). The escape was unsuccessful and resulted in the
death of the inmate and two federal officers.

Id. at *1.

Burke

was interviewed in the investigation into the escape attempt,
and he denied involvement.
On

March

3,

1993,

Id.
Burke

was

sentenced,

in

the

Eastern

District of Illinois, to five years in prison and five years of
supervised release for bank robbery. (Declaration of Alan Ray
(“Ray Decl.”), Attachments, ECF No. 6; Attach. 1 at 2; Attach. 2
at Entry 33).

Burke was released from parole on July 8, 1994,

with 915 days remaining on his custodial term.
at 3.)

(Id., Attach. 1

He violated the terms of his supervised release by

fleeing the United States.

Burke, 2010 WL 1654966, at *1.

On November 29, 1994, the United States Attorney’s Office
filed a motion for an order to show cause why the Court should
not revoke Burke’s supervised release.
Entry 38.)

(Ray Decl., Attach. 2 at

That same day, the court issued a bench warrant for

Burke, based on his failure to contact his probation officer
since August 1994.

(Id. at Entry 39.)

Burke was not arrested

until 1998, when he was found in London, England.
WL 1654966, at *1.

Burke, 2010

He fought extradition but was returned to

the United States on December 22, 2000, for violating the terms
2

of his supervised release.

Burke v. Williams, No. 3:13-CV-167,

2015 WL 3970984, at *3 (N.D.W. Va. Jun. 30, 2015).
Upon his return to the United States, Burke was subpoenaed
to testify before a grand jury investigating the 1992 prison
escape attempt in Chicago.

Id.

While in federal custody, Burke

admitted to other inmates that he had provided the escaping
inmate with the handcuff key.

Id.

On October 2, 2001, Burke

was granted immunity from prosecution for the escape attempt,
but he committed perjury before the grand jury, falsely denying
any knowledge about the handcuff key.

Id.

On December 5, 2001, the district court ruled that Burke
should not have been sentenced to supervised release for the
bank robbery offense because the robbery occurred before the
relevant Sentencing Guidelines took effect.

Id.; (Declaration

of Kristin Vassallo (“Vassallo Decl.”), Exhibits, ECF No. 3; Ex.
A at 1.)
judgment

Accordingly, the district court issued an amended
ordering

robbery conviction.

Burke’s
(Id.)

immediate

release

from

the

bank

However, Burke was not released that

day because he was arrested and charged with perjury related to
the prison escape attempt.

Burke, 2015 WL 3970984, at *4.

Indictment was filed on December 11, 2001.
On

March

12,

2002,

a

superseding

The

Id.
indictment

was

charging Burke with five additional counts of perjury.

filed,
Id.

Burke was convicted of five counts of perjury on November 21,
3

2002.
Burke

(Ray Decl., Attach. 6 at 1.)
was

sentenced

to

an

On September 12, 2003,

aggregate

term

of

240

months

in

prison, followed by a three-year term of supervised release.
(Id. at 2-3.)
Burke appealed to the Seventh Circuit, raising a number of
claims challenging his conviction and sentence.

United States

v. Burke, 425 F.3d 400, 407-17 (7th Cir. 2005).

On September

28, 2005, the Seventh Circuit affirmed Burke’s conviction but
vacated his sentence, remanding the case to the district court
for sentencing consistent with United States v. Booker, 543 U.S.
220 (2005).

Id. at 416-17.

On September 13, 2007, Burke was

resentenced to a 240-month term of imprisonment with a judicial
recommendation
served.”

that

Burke

“be

given

credit

(Ray Decl., Attach. 7 at 1-2.)

sentence

to

the

Seventh

Circuit,

but

for

time

already

Burke appealed his

he

was

unsuccessful.

United States v. Burke, 281 F. App’x 556, 557 (7th Cir. 2008).
Burke

continued

sentence.
pursuant

to

challenge

his

perjury

conviction

and

On April 6, 2009, Burke filed a motion to vacate
to

28

U.S.C.

§

2255

before

the

sentencing

court,

alleging ineffective assistance of trial and appellate counsel,
among other issues.

United States v. Burke, No. 09-2107, 2010

WL 1654966, at *2 (N.D. Ill. Apr. 22, 2010).
denied on April 22, 2010.

Id. at *3-9.

4

The motion was

The Seventh Circuit

affirmed the denial on October 29, 2010. United States v. Burke,
400 F. App’x 81, 81 (7th Cir. 2010).
On August 25, 2011, incarcerated in the Southern District
of Indiana, Burke filed a petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2241, challenging the computation of his
sentence because he had not received prior custody credit for
time spent in custody in England during the extradition process.
(Vassallo Decl., Ex. B at 3-4); Burke v. Lockett, 499 F. App’x
613, 614 (7th Cir. 2013). The petition was denied on September
6, 2012.

(Vassallo Decl., Ex. C at 1.) Burke appealed, but the

Seventh Circuit affirmed the district court’s decision, finding
that none of the time Burke was confined before October 2, 2001
could be attributed to the perjury conviction because he had not
yet

committed

the

perjury

offenses,

and

the

statute

limited

credit “to the time spent in prison on account of the offense of
conviction.”

Burke, 499 F. App’x at 615 (citing 18 U.S.C. §

3585(b)).
The BOP calculated Burke’s perjury sentence, commencing the
240-month
sentenced.

sentence

on

September

12,

2003,

(Ray Decl. ¶ 12; Attach. 8 at 2.)

the

date

he

was

The BOP awarded

Burke prior custody credit from October 2, 2001 (the date he
committed the perjury offense) to September 11, 2003 (the day
before his perjury sentence commenced).
8 at 2.)

(Ray Decl. ¶12; Attach.

Assuming that Burke receives the maximum possible
5

good-conduct time, the BOP projects that Burke will be released
from custody on March 6, 2019.

II.

(Id.)

DISCUSSION
Petitioner seeks prior custody credit for 1,124 days in

custody not credited to his federal sentence, alleging he is in
custody in violation of the Constitution because he has served
his

full

sentence.

(Pet.,

ECF

No.

1.)

Respondent

opposes

relief, stating Petitioner has already raised this claim in the
Southern District of Indiana, where the claim was denied on the
merits, and the denial was affirmed by the Seventh Circuit.
(Answer, ECF No. 3 at 11.)

Respondent seeks dismissal of the

petition under the abuse of the writ doctrine.
In reply, Petitioner alleges four facts in support of his
contention that he is entitled to prior custody credit for time
spent in custody:

(1) his parole expired twenty months prior to

his arrest in the United Kingdom; (2) his sentence of supervised
release was not time-served; the sentence for supervised release
was vacated because it was illegal; (3) “Petitioner shows nature
of offense in J&C (order) making false statements to a Grand
Jury. See: Exhibit Three (3)” and; (4) there is a connection
between Petitioner’s extradition from the United Kingdom to the
United States and his perjury conviction; and he was not given
credit on any other sentence.

(Petr’s Reply, ECF No. 4 at 2.)
6

A.

Abuse of the writ doctrine

Pursuant to 28 U.S.C. § 2244(a):
No circuit or district judge shall be
required to entertain an application for a
writ of habeas corpus to inquire into the
detention of a person pursuant to a judgment
of a court of the United States if it
appears that the legality of such detention
has been determined by a judge or court of
the United States on a prior application for
a writ of habeas corpus, except as provided
in section 2255.
This provision is known as the “abuse of the writ doctrine.”
Furnari v. U.S. Parole Com’n, 531 F.3d 241, 250 (3d Cir. 2008).
[Section] 2244(a) . . . does not reference § 2254, and thus by
its terms applies to any application for a writ of habeas corpus
filed by a person who is in detention pursuant to a judgment of
a court of the United States.”

Queen v. Miner, 530 F.3d 253,

255 (3d Cir. 2008) (per curiam); Caldwell v. Shartle, 461 F.
App’x 98, 100 (3d Cir. 2012) (affirming dismissal of challenge
to

BOP’s

nunc

pro

tunc

decision

raised

in

§

because it was barred by 28 U.S.C. § 2244(a)).

2241

petition

Thus, a court

may deny habeas relief on any ground that was raised in a prior
§ 2241 petition.

Queen, 530 F.3d at 255.

The abuse of the writ doctrine applies where: “(1) the same
ground presented in the successive application was determined
adversely to the applicant on the previous application; (2) the
previous determination was made on the merits; and (3) ‘the ends

7

of justice’ would not be served by reaching the merits of the
subsequent

application.”

Furnari,

531

F.3d

at

250

Sanders v. United States, 373 U.S. 1, 11 (1963)).

(quoting
When the

Government opposes a petition on the ground that it includes a
claim for relief that has already been adjudicated, “the burden
shifts to the petitioner to show that ‘the ends of justice’
would

be

served

by

the

court

entertaining

his

petition,

a

showing that the petitioner satisfies by supplementing his claim
by making a ‘colorable showing of factual innocence.’”

Id. at

251 (quoting Kuhlmann v. Wilson, 477 U.S. 436, 454 (1986)).
Factual innocence is innocence of the offenses for which the
petitioner was convicted.

Id.

Here, Burke challenges the BOP’s failure to grant prior
custody

credit

for

1,124

days

in

custody

while

he

was

challenging extradition in England.

(Pet., ECF No. 1 at 10;

Petr’s Reply, ECF No. 4 at 2-3, 10.)

This is the same claim he

raised in a § 2241 petition in the Southern District of Indiana.
(Vassallo Decl., Ex. B at 3-4); Burke v. Lockett, 499 F. App’x
613, 614 (7th Cir. 2013).

The district court denied the claim

because 18 U.S.C. § 3585(b) limits prior custody credit to time
spent in prison on account of the offense of conviction.
499 F. App’x at 615.

Burke,

Burke committed perjury on October 1,

2001, and none of the time served before that day could be

8

attributed

to

an

offense

he

had

not

committed

yet.

Id.

Therefore, the first prong of the § 2244(a) analysis is met.
The Southern District of Indiana made a determination on
the merits of Burke’s claim for prior custody credit, affirmed
by the Seventh Circuit, which satisfies the second prong of the
§

2244(a)

analysis,

analysis.
Burke

For

has

not

the

third

made

a

prong

of

colorable

the

claim

§

that

2244(a)
he

is

innocent of the perjury charges for which he was convicted.
(See Petr’s Reply, ECF No. 4.)

He asserted only that he was

extradited in order to testify before a grand jury, therefore
the

time

served

pending

extradition

was

related.

Id.

Obviously, before he was extradited, he had not yet committed
perjury before the grand jury, and he does not set forth a
colorable claim of factual innocence.
the

petition

under

the

abuse

of

Therefore, dismissal of
the

writ

doctrine

is

appropriate, pursuant to 28 U.S.C. § 2244(a).1
III. CONCLUSION

1

Alternatively, the Court agrees with the analysis of the
Southern District of Indiana and the Seventh Circuit Court of
Appeals; Burke cannot receive prior custody credit for the 1,124
days in custody in England because Burke had not committed the
perjury offense at that time.
See 18 U.S.C. § 3585(b)(2)
(allowing credit for time served “as a result of any other
charge for which the defendant was arrested after the commission
of the offense for which the sentence was imposed”) (emphasis
added).
9

For the reasons discussed above, the Court will dismiss the
petition under 28 U.S.C. § 2241 for abuse of the writ, pursuant
to 28 U.S.C. § 2244(a).

An appropriate Order follows.
s/Renée Marie Bumb
Renée Marie Bumb
United States District Judge
Dated:

April 27, 2017

10