NEWMAN v. KIRBY

Filing 2

OPINION FILED. Signed by Judge Renee Marie Bumb on 7/19/17. (js)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
________________________
PRAYLOR NEWMAN,
Petitioner,
v.

MARK KIRBY,
Respondent.
________________________

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Civ. No. 17-4653 (RMB)

OPINION

BUMB, United States District Judge
On June 26, 2017, Petitioner, a prisoner confined in FCI
Fairton, in Fairton, New Jersey, filed a Petition for Writ of
Habeas Corpus pursuant to 28 U.S.C. § 2241. (Pet., ECF No. 1.)
Petitioner contends that his prior convictions do not qualify
him as a career offender, and he seeks a writ of habeas corpus.
(Id. at 2.)

Petitioner asserts that jurisdiction is proper

under 28 U.S.C. § 2241 because he is actually innocent of the
past crimes of conviction used to enhance his sentence under the
ACCA; thus, the remedy under 28 U.S.C. § 2255 is inadequate or
ineffective to provide relief.

(Id. at 10.)

Pursuant to Rule 4 of the Rules Governing Section 2254
Cases in the United States District Courts, applicable to § 2241

under Rule 1, the scope of the rules, a district judge must
promptly examine a petition, and “[i]f it plainly appears from
the petition and any attached exhibits that the petitioner is
not entitled to relief in the district court, the judge must
dismiss

the

petitioner.”

petition

and

direct

the

Clerk

to

notify

the

For the reasons discussed below, the Court lacks

jurisdiction under § 2241.
I.

BACKGROUND
This is Petitioner’s second habeas petition in this Court

challenging his 2003 federal sentence under the Armed Career
Criminal Act.

On October 9, 2003, in the Eastern District of

Pennsylvania, Petitioner was convicted as a felon in possession,
and

for

obstruction

of

justice,

witness

tampering

and

other

charges. United States v. Newman, Crim. Action No. 02–0539(JCJ)
(E.D.

Pa.

Oct.

imprisonment.

9,

(Id.)

2003).1

He

was

sentenced

to

293

months

After his direct appeal, Petitioner filed

a motion under 28 U.S.C. § 2255, appealing his sentence for the
following reasons:
(1) his sentence was unreasonable under
United States v. Booker, 543 U.S. 220, 125
S.Ct. 738, 160 L.Ed.2d 621 (2005) because
the District Court did not sufficiently
articulate
its
consideration
of
the
sentencing factors set forth in 18 U.S.C. §
3553(a); (2) the District Court erred in
using his three prior burglary and three
prior
drug
convictions
to
enhance
his

1

Available at www.PACER.gov
2 

sentence because those convictions had not
been proven to a jury beyond a reasonable
doubt; and (3) the government lacked the
sufficient proof required under Shepard v.
United States, 544 U.S. 13, 125 S.Ct. 1254,
161 L.Ed.2d 205 (2005) to establish that his
pleas
to
three
burglaries
under
Pennsylvania's non-generic burglary statute
brought him within the ambit of the Armed
Career Criminal Act (ACCA).
U.S. v. Newman, 186 F. App’x 264, 2006 WL 1662930 (3rd Cir.
2006).
On

The Third Circuit affirmed Petitioner’s sentence.
September

5,

2014,

this

Court

dismissed

Id.

Petitioner’s

first petition under § 2241 for lack of jurisdiction, stating:
Here, Petitioner challenged his sentence
enhancement during his re-sentencing and on
direct appeal from that re-sentencing, and
his challenges were expressly dismissed by
his sentencing court and the Court of
Appeals with an express reminder that he had
stipulated that he was an armed career
criminal.
Newman

v.

Shartle,

Civ.

Action

No.

14–2793(RMB),

2014

WL

4388601, at *2 (D.N.J. Sept. 4, 2014).
II.

DISCUSSION
In the Third Circuit, the exception to the general rule that

a challenge to a conviction or sentence must be brought under 28
U.S.C. § 2255 in the sentencing court has only been applied
“where

the

petitioner

was

in

the

‘unusual

position’

of

a

prisoner with no prior opportunity to challenge his conviction
for a crime that an intervening change in substantive law could
negate with retroactive application.” Okereke v. U.S., 307 F.3d
3 

117, 120 (3d Cir. 2002) (quoting In re Dorsainvil, 119 F.3d 245,
251 (3d Cir. 1997)). The Third Circuit has not extended this
exception to include situations where a prisoner is challenging
a

sentence

enhancement

substantive law.
to

sentencing

based

on

an

intervening

change

in

Id. (refusing to extend Dorsainvil exception

challenge

under

Apprendi);

Rodriguez

v.

Warden

Lewisburg USP, Nos. 15-3555, 15-3570, 2016 WL 1127869, at *2 (3d
Cir. Mar. 23, 2016) (refusing to extend Dorsainvil exception to
sentencing challenge under “Apprendi-based arguments.”)
Here,

Petitioner

challenges

the

basis

for

his

sentence

enhancement under the ACCA, pursuant to Mathis v. United States,
136 S.Ct. 2243 (2016).

(Pet., ECF No. 1 at 3.)

This Court

lacks jurisdiction under 28 U.S.C. § 2241, because Petitioner
was

not

deemed

convicted
not

to

(distinguishing

be

for

conduct

criminal.

between

that
See

changes

in

the

Supreme

Okereke,
law

that

307

Court
F.3d

later

at

potentially

120
made

conduct non-criminal from changes in the law that deal only with
sentencing).
III. CONCLUSION
This Court lacks jurisdiction over the § 2241 petition.
Petitioner has already brought a motion to vacate, set aside or
correct a sentence under 28 U.S.C. § 2255 in the sentencing
court.

Therefore,

he

must

seek

permission

from

the

Third

Circuit Court of Appeals if he wishes to bring his present claim
4 

in a second or successive petition under 28 U.S.C. § 2255(h).
An appropriate Order follows.
Dated: July 19, 2017
s/Renée Marie Bumb__________
RENÉE MARIE BUMB
United States District Judge

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