BLACK v. KIRBY
Filing
4
OPINION. Signed by Judge Noel L. Hillman on 6/6/2016. (tf, n.m.)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
___________________________________
:
:
:
Petitioner,
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v.
:
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MARK KIRBY,
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:
Respondent.
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___________________________________:
RODERICK BLACK,
Civ. No. 16-1553 (NLH)
OPINION
APPEARANCES:
Roderick Black, # 28287-054
FCI Fairton
P.O. Box 420
Fairton, NJ 08320
Petitioner Pro se
HILLMAN, District Judge
Petitioner Roderick Black, 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 March
28, 2016, the Court administratively terminated this action due
to Petitioner’s failure to satisfy the filing fee requirement.
(ECF No. 3).
On or about March 30, 2016, Petitioner paid the $5
filing fee and this matter was reopened for review by a judicial
officer.
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
prejudice.
I.
BACKGROUND
Petitioner provides little information in his Petition.
He
does not specify the charges for which he was convicted and
states only that he was sentenced in North Carolina on September
2, 1994. (Pet. 1, ECF No. 1).
He further states that he filed
two appeals, which were both denied on September 18, 1996. (Id.
at 2, 3).
Petitioner certifies that he did not file a motion
under 28 U.S.C. § 2255 challenging his conviction and sentence.
(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 and sentence now
challenged by Petitioner in this § 2241 habeas petition.
The
search revealed multiple post-conviction filings, including a §
2241 petition filed before the United States District Court for
the Middle District of Pennsylvania, which was dismissed for
lack of jurisdiction. Memorandum and Order Dismissing Case,
Black v. Warden, USP Lewisburg, No. 07-805 (M.D. Pa. May 29,
2007) ECF No. 3.
Petitioner appealed and the Third Circuit
affirmed the decision of the district court.
The following
factual and procedural history is taken from the Opinion of the
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Third Circuit affirming the district court’s dismissal of
Petitioner’s § 2241 petition:
On September 2, 1994, Black was convicted of various
drug trafficking offenses, in the United States
District Court for the Eastern District of North
Carolina. United States v. Black, 97 F.3d 1449 (4th
Cir. 1996). He was also convicted of violating 18
U.S.C. 924(c)(1), which criminalizes using or carrying
a firearm during a drug trafficking crime, and
engaging in a continuing criminal enterprise (CCE) in
violation of 21 U.S.C. 848. Id. Black was sentenced
to consecutive terms of life in prison and sixty
months. Id. The United States Court of Appeals for
the Fourth Circuit affirmed the judgment of the
district court on September 18, 1996. Id.
In early 2001, Black filed a 28 U.S.C. § 2255 motion
with the sentencing court, which denied the motion as
untimely. United States v. Black, 19 Fed. Appx. 78
(4th Cir. 2001). He pursued an appeal, and on
September 19, 2001, the Fourth Circuit agreed with the
district court's conclusion that the § 2255 motion was
untimely, denied a certificate of appealability and
dismissed the appeal.
On May 2, 2007, Black filed a petition for writ of
habeas corpus under 28 U.S.C. § 2241 in the Middle
District of Pennsylvania to challenge his 1994
conviction. The district court dismissed the petition
on the ground that Black could only challenge his
conviction via a § 2255 motion.
Black v. Warden, USP Lewisburg, 253 F. App’x 209, 210 (3d Cir.
2007).
This Court also notes that in 2010 Petitioner filed a
second motion to vacate, set aside, or correct his sentence
pursuant to 28 U.S.C. § 2255 in the United States District Court
in the Eastern District of North Carolina.
In that motion, he
alleged ineffective assistance of counsel due to his counsel’s
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failure to properly pursue a motion to reduce his sentence
pursuant to 18 U.S.C. § 3582 in the underlying criminal case.
The United States District Court for the Eastern District of
North Carolina denied Petitioner’s motion. Black v. United
States, No. 2:10-CV-46-BO, 2010 WL 4860349, at *1 (E.D.N.C. Nov.
22, 2010).
In 2014, Petitioner filed a third motion to vacate, set
aside, or correct his sentence pursuant to 28 U.S.C. § 2255.
In
that motion, Petitioner challenged his original sentence of life
imprisonment pursuant to the Supreme Court’s ruling in Alleyne
v. United States, 133 S. Ct. 2151, 186 L. Ed. 2d 314 (2013).
In
an Order dated September 17, 2014, the United States District
Court for the Eastern District of North Carolina dismissed the
motion as a second or successive motion for which Petitioner had
not sought authorization to file from the Fourth Circuit Court
of Appeals. Black v. United States, No. 2:14-CV-35-BO, 2014 WL
4686677, at *1 (E.D.N.C. Sept. 17, 2014), reconsideration
denied, No. 2:14-CV-35-BO, 2014 WL 5307465 (E.D.N.C. Oct. 16,
2014).
Petitioner has now filed the instant habeas petition
pursuant to 28 U.S.C. § 2241 and asserts that he is actually
innocent of the life sentence imposed under 21 U.S.C. § 841.
(Pet. 2, 5, ECF No. 1).
Petitioner further asserts that § 2255
is inadequate or ineffective to challenge his conviction or
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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.
II.
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. §§
2243, 2255.
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III. DISCUSSION
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
Petition.
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
States v.
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).
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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.
§ 2255(e).
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
251-52.
The Court of Appeals for the Third Circuit subsequently
emphasized the narrowness of its Dorsainvil holding when it
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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, 1 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.
2002). 2
1
United States v. Booker, 543 U.S. 220 (2005).
2
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.”
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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).
B. Analysis
Here, Petitioner has failed to bring his claim within the
Dorsainvil rule.
As an initial matter, the Supreme Court’s decision in
Burrage did not decriminalize the conduct for which Petitioner
was convicted.
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
stated:
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
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claim, and the MDPA did not err in denying his motion
to reconsider.
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.”).
Therefore, Petitioner may
not raise his claim based on Burrage in the instant petition
pursuant to § 2241.
Further, as described above, Petitioner has filed several
post-conviction actions and at least three motions pursuant to §
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2255 in the Eastern District of North Carolina — one of which
was filed after the Supreme Court rendered its decision in
Burrage. See Motion to Vacate under 28 U.S.C. § 2255, United
States v. Black, No. 94-cr-0015 (E.D.N.C. June 13, 2014) ECF No.
531; see also Black v. United States, 2014 WL 4686677, at *1
(“Mr. Black filed a third motion to vacate on June 13, 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.
Instead,
the Petition is more appropriately characterized as a second or
successive motion under § 2255, which Petitioner has not
received authorization to file 3, and over which this Court also
lacks jurisdiction.
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
3
Petitioner makes no allegation that he sought, or received,
permission from the Fourth Circuit to file a second or
successive motion under § 2255.
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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
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 Fourth 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
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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.
The
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 Fourth Circuit would grant Petitioner leave to assert his
claims under Burrage in a second or successive petition. See,
e.g., UNITED STATES OF AMERICA v. DAVID OWENS, Petitioner., No.
3:05CR264-HEH-1, 2016 WL 1562917, at *3 (E.D. Va. Apr. 15, 2016)
(collecting cases and noting that “several courts have already
found that Burrage did not announce a new rule of constitutional
law and that, even if it had, the Supreme Court did not make
Burrage retroactively applicable”); Evans v. United States, No.
CV CCB-16-928, 2016 WL 1377365, at *3 (D. Md. Apr. 6, 2016)
(quoting United States v. Poole, 531 F.3d 263, 267 n.7 (4th Cir.
2008)) (“The Fourth Circuit has ‘not extended the reach of the
[§ 2255(e)] savings clause to those petitioners challenging only
their sentence.’”).
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
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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 March
15, 2016 4 — more than 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 oneyear timeframe he filed a second or successive § 2255 motion in
the Eastern District of North Carolina based on entirely
different grounds. See Motion to Vacate under 28 U.S.C. § 2255,
United States v. Black, No. 94-cr-0015 (E.D.N.C. June 13, 2014)
ECF No. 531; see also Black v. United States, 2014 WL 4686677,
at *1 (“Mr. Black filed a third motion to vacate on June 13,
2014 . . . .”).
For these reasons, it would not be in the
interest of justice to transfer this Petition to the Court of
Appeals for the Fourth Circuit.
4
Although the Petition was filed on the docket March 21, 2016,
the Petition is dated March 15, 2016. See (Pet. 9, 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[.]”).
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IV.
CONCLUSION
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
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