BLACK v. KIRBY

Filing 4

OPINION. Signed by Judge Noel L. Hillman on 11/27/2017. (dmr)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
___________________________________
:
:
:
Petitioner,
:
:
v.
:
:
MARK KIRBY,
:
:
Respondent.
:
___________________________________:
RODERICK BLACK,

Civ. No. 16-8307 (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).

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
This Court outlined the procedural history of Petitioner’s

criminal matters in an opinion dismissing a previous § 2241 from
Petitioner:

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 F. App’x 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 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
2

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-CV35-BO, 2014 WL 5307465 (E.D.N.C. Oct. 16,
2014).
Black v. Kirby, No. 16-1553, 2016 WL 3219864, at *1–2 (D.N.J.
June 7, 2016).
In the previous § 2241 petition before this Court,
Petitioner argued that he was actually innocent of the life
sentence imposed under 21 U.S.C. § 841.

Id.

He further

asserted that § 2255 was 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).

Id.

The Court found that it was

without jurisdiction to consider Petitioner’s claims in a § 2241
and denied the petition.

Id.

3

In the instant Petition, Petitioner argues that pursuant to
United States v. Theodoropoulos, 866 F.2d 587 (3d Cir. 1988),
Bailey v. United States, 516 U.S. 137 (1995) and Bousley v.
United States, 523 U.S. 614 (1998), he is actually innocent of
his § 924(c) conviction. 1
II.
A.

(ECF No. 1.)

DISCUSSION
Legal Standard
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.

1

See Denny v. Schultz,

In his 2007 § 2241 petition before the Middle District of
Pennsylvania, Petitioner also argued actual innocence pursuant
to Bailey/Bousley. The Third Circuit affirmed the court’s
dismissal for lack of jurisdiction. Black, 253 F. App’x at 210.
4

708 F.3d 140, 148 n. 3 (3d Cir. 2013); see also 28 U.S.C. §§
2243, 2255.
B. Analysis
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).
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.”
U.S.C. § 2255(e).

See 28

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

5

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
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

120-21 (in which the petitioner had been sentenced based upon a
drug quantity determined at sentencing by a judge using the
6

preponderance of evidence standard).

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).
Here, Petitioner’s claims do not fall into the Dorsainvil
exception.

Specifically, he does not allege that he had no

earlier opportunity to challenge his conviction for a crime that
an intervening change in substantive law may negate.

In fact,

Petitioner has already sought § 2255 relief pursuant to
Bailey/Bousley before the district court in North Carolina and
the Courts of Appeals for the Fourth Circuit to no avail.

See

United States v. Black, 19 F. App'x 78, 78 (4th Cir. 2001).
Despite Petitioner’s contentions to the contrary, Section 2255
is not inadequate or ineffective merely because the sentencing
court does not grant relief, the one-year statute of limitations
has expired, or the petitioner is unable to meet the stringent
gatekeeping requirements of the amended § 2255.

Cradle, 290 at

539. 2
Based on the foregoing, and as previously determined by the
Middle District of Pennsylvania and Third Circuit, the Court
finds that it lacks jurisdiction under § 2241 over the instant

2

Petitioner’s
additional
reliance
on
United
States
v.
Theodoropoulos, 866 F.2d 587 (3d Cir. 1989) does not help his cause
as that case was decided before he was convicted and available to
him during his entire criminal and collateral proceedings.
7

habeas petition.

Whenever a civil action is filed in a court

that lacks jurisdiction, “the court shall, if it is in the
interests of justice, transfer such action . . . to any other
such court in which the action . . . could have been brought at
the time it was filed.”

28 U.S.C. § 1631.

In this case, the

Court will not transfer the Petition to the Fourth Circuit for
its consideration as a request to file a second or successive §
2255 motion because, as discussed above, the court has already
found Petitioner’s claims under Bailey/Bousley to be time
barred.
III. CONCLUSION
For the foregoing reasons, the Petition will be summarily
dismissed due to a lack of jurisdiction.

An appropriate order

follows.
Dated: November 27, 2017
At Camden, New Jersey

s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.

8