JOHNSON v. KANE et al

Filing 4

OPINION. Signed by Judge Renee Marie Bumb on 8/21/2017. (dmr)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
________________________
BRIAN ANTWANIN JOHNSON,
Petitioner,
v.

UNITED STATES et al.,
Respondents.
________________________

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Civ. No. 17-4978 (RMB)

OPINION

APPEARANCE
ROBERT M. GAMBURG, Esq.
1500 Walnut Street
22nd Floor
Philadelphia, PA 19102
On behalf of Petitioner
BUMB, United States District Judge
Petitioner, Brian Antwanin Johnson, a prisoner confined in
FCI Fairton, in Fairton, New Jersey,1 filed a Petition for Writ
of Habeas Corpus pursuant to 28 U.S.C. § 2241 on July 7, 2017.
(Pet., ECF No. 1.)

Petitioner seeks habeas relief on the basis

that a life sentence for a non-violent, essentially first time
offender violates the 8th Amendment.
also

seeks

discretionary

relief

from

(Id., ¶45.)
his

sentence

Petitioner
from

the

United States Attorney’s Office, pursuant to Federal Rule of

1

See BOP Inmate Locator, available at
https://www.bop.gov/inmateloc/

Civil Procedure 60(b).

(Pet., ECF No. 1, ¶¶46-60.)

According 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

petition

petitioner.”

and

direct

the

Clerk

to

notify

the

For the reasons discussed below, the Court lacks

jurisdiction under § 2241 and Federal Rule of Civil Procedure
60(b).
I.

BACKGROUND
On January 20, 2000, Petitioner was found guilty, in the

U.S.

District

Court,

Eastern

District

of

Virginia,

of

money

laundering in violation of 18 U.S.C. § 1956(a)(1)(B)(i); money
laundering in violation of 18 U.S.C. §1 956(a)(1)(B)(I); and
conspiracy to possess and distribute more than 50 grams of crack
cocaine in violation of 21 U.S.C. § 841(a)(1) and 846.
ECF No. 1, ¶¶1-8.)
parole

on

the

drug

(Pet.,

Petitioner was sentenced to life without
charges,

and

240

months

on

the

money

laundering charges, to run concurrent with the life sentence.
(Id., ¶9.)

Petitioner had only one prior conviction, for a time

period that was included in the conspiracy.

(Id., ¶10.)

The

conviction and sentence were affirmed on appeal on June 28,
2 

2001.

(Id., ¶12.)
Petitioner filed his first motion to vacate under 28 U.S.C.

§ 2255 on January 8, 2003.

(Id., ¶13.)

The motion was denied,

and the district court was affirmed on appeal.

(Id., ¶¶15-17.)

On August 21, 2008, Petitioner filed a motion for retroactive
application

of

Sentencing

Guidelines

pursuant to 18 U.S.C. § 3582.

as

to

crack

(Id., ¶18.)

cocaine

The motion was

denied, and the Fourth Circuit Court of Appeals affirmed.

(Id.,

¶¶19, 20.)
On

September

successive
denied.

motion

9,

2011,

pursuant

(Id., ¶¶21-22.)

Petitioner

to

28

filed

U.S.C.

§

a

2255,

second

or

which

was

Petitioner filed yet another motion to

vacate pursuant to 28 U.S.C. § 2555 on August 7, 2012, which was
also denied, and the Fourth Circuit affirmed on November 27,
2012.

(Id., ¶¶23-25.)

prejudice
Circuit
petition.
II.

for
Court

failing
of

These § 2255 motions were denied without
to

Appeals

request
to

permission

file

a

from

second

or

the

Fourth

subsequent

(Id., ¶26.)

DISCUSSION
A.

Jurisdiction under 28 U.S.C. § 2241

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
3 

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
117, 120 (3d Cir. 2002) (quoting In re Dorsainvil, 119 F.3d 245,
251 (3d Cir. 1997)).
A petitioner may not challenge his conviction or sentence
under § 2241 merely because he is unable to meet the gatekeeping
requirements for a second or successive petition under 28 U.S.C.
§ 2255.

In re Dorsainvil, 119 F.3d at 251.

Here, Petitioner

acknowledges that his second or successive § 2255 motions, filed
in

the

improper

sentencing
basis

to

court,
file

have

a

been

petition

dismissed.
under

§

2241

This
in

is

an

another

jurisdiction.
B.

Jurisdiction under Fed. R. Civ. P. 60(b), Relief from
a Judgment or Order

Federal Rule of Civil Procedure 60(b) provides:
(b)
Grounds
for
Relief
from
a
Final
Judgment, Order, or Proceeding. On motion
and just terms, the court may relieve a
party or its legal representative from a
final judgment, order, or proceeding for the
following reasons:
(1) mistake, inadvertence, surprise, or
excusable neglect;
(2) newly discovered evidence that,
with reasonable diligence, could not
have been discovered in time to move
for a new trial under Rule 59(b);
(3)

fraud

(whether
4 

previously

called

intrinsic
or
extrinsic),
misrepresentation, or misconduct by an
opposing party;
(4) the judgment is void;
(5) the judgment has been satisfied,
released or discharged; it is based on
an earlier judgment that has been
reversed or vacated; or applying it
prospectively is no longer equitable;
or
(6) any
relief.

other

reason

that

justifies

Petitioner seeks relief under Rule 60(b), not from this
Court, but from the U.S. Attorney’s Office.
60.)

(See Pet., ¶¶46-

Clearly by the language of Rule 60(b), it was not intended

for this purpose.

The Court will dismiss the petition and 60(b)

motion for lack of jurisdiction.
III. CONCLUSION
The Court dismisses the § 2241 petition, and the Rule 60(b)
motion within the petition, for lack of jurisdiction.
An appropriate Order follows.
Dated: August 21, 2017
s/Renée Marie Bumb__________
RENÉE MARIE BUMB
United States District Judge

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