FELDER v. KIRBY

Filing 11

OPINION. Signed by Judge Jerome B. Simandle on 11/14/2018. (rss, n.m.)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

JOHN FELDER,

HONORABLE JEROME B. SIMANDLE
Petitioner,
Civil Action
No. 17-1534 (JBS)

v.
WARDEN MARK KIRBY,

OPINION
Respondent.

APPEARANCES:
John Felder, Petitioner pro se
#60530-066
FCI Fairton
P.O. Box 420
Fairton, NJ 08320
SIMANDLE, District Judge:
INTRODUCTION
John Felder moves for relief from this Court’s August 30,
2017 order dismissing his amended petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2241. Motion for Relief, Docket
Entry 10. For the reasons stated below, the motion is denied
without prejudice.
BACKGROUND
Petitioner’s history was briefly recounted by the Court in
its opinion transferring the habeas petition to the Third
Circuit for consideration under 28 U.S.C. § 2255(h):

Petitioner was sentenced in the Eastern District of
Pennsylvania (“Eastern District”) on June 9, 2008 after
being convicted by a jury of drug and firearm offenses.
The Court of Appeals for the Third Circuit affirmed the
convictions and 264-month sentence.
In 2011, Petitioner filed a motion pursuant to 28 U.S.C.
§ 2255 in the Eastern District challenging his
convictions. However, the court treated his § 2255
motion as a motion for a new trial pursuant to Federal
Rule of Criminal Procedure 33 and denied relief. The
Third Circuit affirmed the recharacterization and
result. Petitioner later filed a § 2255 motion raising
arguments pursuant to Descamps v. United States, 133 S.
Ct. 2276 (2013). The Eastern District denied the motion.
Felder v. Kirby, No. 17-1534, 2017 WL 3736658, at *1 (D.N.J.
Aug. 30, 2017) (footnote and internal citations omitted). See
also United States v. Felder, 529 F. App’x 111 (3d Cir. 2013)
(per curiam). In his § 2241 petition, Petitioner asked the Court
to resentence him without the career offender enhancement
because his prior convictions no longer qualified him as a
career offender citing Mathis v. United States, 136 S. Ct. 2243
(2016), and Holt v. United States, 843 F.3d 720 (7th Cir. 2016).
The Court concluded that existing Third Circuit precedent
did not confer jurisdiction to review Petitioner’s challenges to
his sentencing enhancement under § 2241. August 30, 2017 Opinion
at 4-5 (citing United States v. Brown, 456 F. App’x 79, 81 (3d
Cir. 2012 (per curiam); In re Dorsainvil, 119 F.3d, 245, 249 (3d
Cir. 1997)). The Court exercised its discretion to transfer the
matter under 28 U.S.C. § 1631 to the Third Circuit for review
under § 2255(h) as a second or successive § 2255 motion. Id. at
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n.2. See In re Felder, No. 17-2902 (3d Cir. dismissed Oct. 31,
2017).
On March 27, 2018, Petitioner filed the instant motion
under Rule 60(b). He argues the Court erred by converting the
motion to a second or successive § 2255 motion without providing
him notice under United States v. Miller, 197 F.3d 644 (3d Cir.
1999). He also argues the Court erred by concluding it lacked
jurisdiction under § 2241. He noted there are several cases
pending before the Third Circuit raising identical issues that
were not recharacterized as § 2255(h) motions.
STANDARD OF REVIEW
A Rule 60(b) motion is “addressed to the sound discretion
of the trial court guided by accepted legal principles applied
in light of all the relevant circumstances.” Ross v. Meagan, 638
F.2d 646, 648 (3d Cir. 1981). Rule 60(b) “does not confer upon
the district courts a ‘standardless residual of discretionary
power to set aside judgments.’” Moolenaar v. Gov. of the Virgin
Islands, 822 F.2d 1342, 1346 (3d Cir. 1987). “Rather, relief
under Rule 60(b) is available only under such circumstances that
the ‘overriding interest in the finality and repose of judgments
may properly be overcome.’” Tischio v. Bontex, Inc., 16 F. Supp.
2d 511, 533 (D.N.J. 1998) (quoting Martinez–McBean v. Gov. of
the Virgin Islands, 562 F.2d 908, 913 (3d Cir. 1977); see also
Moolenaar, 822 F.2d at 1346 (“The remedy provided by Rule 60(b)
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is ‘extraordinary and special circumstances must justify
granting relief under it.”) (internal citation omitted). “Rule
60(b) must be applied ‘[s]ubject to the propositions that the
finality of judgments is a sound principle that should not
lightly be cast aside, [and] ... is not a substitute for
appeal.” Kock v. Gov. of the Virgin Islands, 811 F.2d 240, 246
(3d Cir. 1987) (internal citation omitted).
ANALYSIS
The Third Circuit’s required Miller notice did not apply to
Petitioner’s § 2241 petition. In Miller, the Third Circuit
expressed concern that sua sponte recharacterization of “a
petitioner's first post-conviction pleading as his § 2255 writ
[would] effectively bar[] all future writs except in the rare
circumstances set out in § 2255.” 197 F.3d at 651 (emphasis
added). The court therefore instructed district courts to warn
first time pro se petitioners that “[s]ection 2255, as amended
by AEDPA, bars second or successive habeas petitions absent
exceptional circumstances and certification by the appropriate
court of appeals” and that “petitioners must marshal in one §
2255 writ all the arguments they have to collaterally attack
their convictions.” Id. at 649. This was not Petitioner’s first
post-conviction pleading. See United States v. Felder, No. 143344 (3d Cir. Feb. 17, 2015) (noting § 2255 motion under
Descamps was time-barred), cert. denied, 136 S. Ct. 140 (Mem)
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(2015). The Court was therefore not required to warn Petitioner
of the consequences of filing a first § 2255 motion before
transferring the petition to the Third Circuit.
Petitioner also has not met the high standard for
reconsideration of this Court’s decision. Fed. R. Civ. P. 60(b).
The Court acknowledges that there are cases pending before the
Third Circuit that will decide whether district courts have
jurisdiction to consider challenges to sentencing enhancements
under the savings clause of § 2255(e). However to date, the
Court of Appeals has not extended the savings clause to cases
such as Petitioner’s in a precedential opinion. See Newman v.
Kirby, No. 17-2659 (3d Cir. Nov. 8, 2018) (slip op. at 3 n.1)
(non-precedential) (“We have not determined whether § 2255(e)’s
saving clause is available when a defendant seeks to challenge a
sentence enhancement based on an intervening change in statutory
interpretation, and we need not do so here.”) (internal citation
omitted); Townsend v. Warden Hazelton FCI, __ F. App’x __, 2018
WL 5733043, at *2 (3d Cir. Oct. 31, 2018) (non-precedential)
(citing United States v. Doe, 810 F.3d 132, 160-61 (3d Cir.
2015)). In the absence of published authority extending the
savings clause’s reach, the Court declines to exercise
jurisdiction under § 2241. Petitioner may file a new motion
under Rule 60(b) if the Third Circuit extends § 2241’s scope.

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CONCLUSION
For the reasons stated above, the motion for relief is
denied without prejudice. An accompanying Order will be entered.

November 14, 2018
Date

s/ Jerome B. Simandle
JEROME B. SIMANDLE
U.S. District Judge

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