WALTERS v. KIRBY
OPINION. Signed by Judge Renee Marie Bumb on 5/12/2016. (TH, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Civil Action No. 16-1480(RMB)
BUMB, District Judge
submission of a petition under 28 U.S.C. § 2241. (Pet., ECF No.
1.) The Court must review the petition and dismiss the petition
exhibits that the petitioner is not entitled to relief in the
district court.” See Rule 4 of the Rules Governing Section 2254
Cases in the United States District Courts, applicable to cases
filed under 28 U.S.C. § 2241 pursuant to Rule 1, the scope of
imprisoned upon conviction in the United States District Court
for the Southern District of West Virginia, for conspiracy to
possess with intent to distribute marijuana, 21 U.S.C. § 846,
841(a)(1), conspiracy to launder money instruments, 21 U.S.C. §
1956(a) and (h), conducting a financial transaction to promote a
specified unlawful activity, 18 U.S.C. § 1956(a)(1)(B)(1), and
making a false statement in an application for a passport, 18
U.S.C. § 1542. (Pet. ¶7); U.S. v. Walters, 191 F.3d 449 (table),
1999 WL 713905 (4th Cir. 1999) (per curiam).1 Petitioner was
sentenced to 405-months of imprisonment. Id. His direct appeal
was denied by the Fourth Circuit Court of Appeals on September
14, 1999. Id.
Petitioner timely filed a motion to vacate, set aside or
correct sentence under 28 U.S.C. § 2255 in the sentencing court.
(S.D.W.Va. June 1, 2001). He alleged six grounds for relief,
including whether his sentence exceeded the statutory maximum
(2000). Id. at *2. The sentencing court denied the motion, the
Supreme Court denied certification. Id., U.S. v. Walters, 21 F.
The Court takes judicial notice of Walters’ appeal and other
challenges to his conviction and sentence as matters of public
record. See Fed. R. Evid. 201(a), (b) and (d) (at any stage of
the proceeding, a court may judicially notice a fact this is not
subject to reasonable dispute).
Appx. 225 (4th Cir. 2001)(per curiam) cert. denied 537 U.S. 893
modification or reduction of his sentence pursuant to 18 U.S.C.
§ 3582(c)(2), but the motion was denied, as was his appeal.
3288545 at *1 (E.D. Ca. Aug. 10, 2012) (citing United States v.
Walters, No. 06-6617 (4th Cir. Jan. 18, 2007). Then, on May 28,
2009, Petitioner filed a petition for writ of audita querela
pursuant to 28 U.S.C. § 1651. Id. (citing Walters v. United
States, No. 2:09-cv-589 (S.D.W.Va.)) This petition was denied on
August 21, 1999. Id. On November 21, 2011, Petitioner filed a
application for relief under 28 U.S.C. § 2255 in the Fourth
Circuit Court of Appeals. Id. (citing In re Walters, No. 11-298
(4th Cir. 2011)). The petition was denied. Id.
Next, Petitioner filed a petition for writ of habeas corpus
under 28 U.S.C. § 2241 in his district of confinement, alleging
he was actually innocent of the money laundering charge based on
the U.S. Supreme Court decision in United States v. Santos, 553
U.S. 507 (2008). Walters, 2012 WL 3288545 at *1. The District
petition for lack of jurisdiction, holding that the claim should
have been brought before the sentencing court under 28 U.S.C. §
2255. Id. at *3.
In the Petition at bar, Petitioner asserts that “according
to [the] Supreme Court ruling in Burrage v. United States[,] 571
U.S. 134 (2014), that interpreted the Federal Statute 21 U.S.C.
§ 841(a)(1) [Petitioner] is actually innocent of conviction on
Sentence based on drug finding by Judge an[d] not jury that
The presumptive means for a federal prisoner to challenge
the legality of his conviction or sentence, once the conviction
is final, is through a motion filed pursuant to 28 U.S.C. §
Okereke v. U.S., 307 F.3d 117, 120 (3d Cir. 2002). 28
U.S.C. § 2255(e) contains a savings clause applicable to cases
where a § 2255 motion would be “inadequate or ineffective.” The
fact that a petitioner cannot meet the stringent gatekeeping
remedy. McCullough v. U.S., 501 F. App’x 115, 117 (3d Cir. Oct.
17, 2012)(per curiam).
It is a rare case when the savings clause applies.
v. U.S., 581 F.3d 172, 174, n.1 (3d Cir. 2009)(appropriate use
of the § 2255 savings clause is rare).
At present, the Third
qualifies for the § 2255(e) exception “only where the conduct
that forms the basis for the conviction has since been deemed
non-criminal by an intervening Supreme Court decision that was
unavailable on appeal or during § 2255 proceedings.” Upshaw v.
Warden Lewisburg USP, 2016 WL 611476, at *1 (3rd Cir. Feb. 16,
2016) (citing In re Dorsainvil, 119 F.3d 245, 251-52 (3d Cir.
Here, Petitioner contends that the basis for his sentencing
841(b)(1)(c) by the Supreme Court in Burrage. The savings clause
in § 2255(e) does not allow a Petitioner to bring a petition
under 28 U.S.C. § 2241 to raise the argument that “the ‘death
results’ penalty enhancement [of § 841(b)(1)(c)] is an element
that must be submitted to the jury and found beyond a reasonable
doubt.” Upshaw, 2016 WL 611476, at *2 (the holdings in Alleyne
v. United States, 133 S.Ct. 2151 (2013) and Burrage, 134 S.Ct.
at 887 are extensions of Apprendi, 530 U.S. 466 (2000), and §
2241 petitions may not be used to raise sentencing challenges
under these cases). Petitioner may not use a § 2241 petition to
challenge his sentencing enhancement under Burrage.
In the accompanying Order filed herewith, the Court will
dismiss the petition for lack of jurisdiction.
s/RENÉE MARIE BUMB
RENÉE MARIE BUMB
United States District Judge
Dated: May 12, 2016
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