Boice v. KIRBY
Filing
6
OPINION. Signed by Judge Renee Marie Bumb on 10/18/2017. (tf, n.m.)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
________________________
PHILLIP GERMAINE BOICE,
Petitioner,
v.
MARK A. KIRBY,
Respondent.
________________________
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Civ. No. 17-5722 (RMB)
OPINION
BUMB, United States District Judge
On
August
3,
2017,
the
United
States
District
Court,
Eastern District of North Carolina transferred this action under
28
U.S.C.
§
2241
to
this
Court
because
Petitioner
is
incarcerated in the Federal Correctional Institution in Fairton,
New Jersey, and jurisdiction under § 2241 is in the district
where the petitioner is confined.
(Transfer Order, ECF No. 4 at
1; Pet., ECF No. 1.)
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
petition
petitioner.”
and
direct
the
Clerk
to
notify
the
For the reasons discussed below, this Court lacks
jurisdiction under § 2241.
I.
BACKGROUND
On July 7, 2005, Petitioner entered a plea of guilty, in
the
United
States
District
Court,
Eastern
District
of
North
Carolina, to possession of a firearm and ammunition by a felon,
in violation of 18 U.S.C. §§ 922(g)(1), 924.
¶4;
U.S.
sentenced
finding
States
v.
Boice,
Petitioner
he
was
an
Sentencing
5:05-CR-126-H1
to
armed
a
(E.D.N.C.))
188-month
career
Guidelines
(ECF No. 1-1 at 6,
term
criminal
(“USSG”)
§
of
The
court
imprisonment,
pursuant
4B1.2.
to
United
(Id.,
¶5.)
Petitioner appealed to the Fourth Circuit Court of Appeals, and
the Fourth Circuit dismissed the appeal.
Petitioner
filed
a
first
motion
under § 2255 on May 14, 2007.
permitted
one
claim
remaining claim.
to
May
18,
proceed,
(Id. at 7, ¶7.)
2016,
to
vacate
his
(Id. at 6-7, ¶7.)
Fourth Circuit dismissed the appeal.
On
(Id., ¶6.)
Petitioner
but
later
sentence
The court
dismissed
the
Petitioner appealed, and the
(Id.)
sought
permission
from
the
Fourth Circuit Court of Appeals to file a second motion under 28
U.S.C. § 2255, arguing that he is serving a sentence in excess
of the maximum authorized by law under United States v. Newbold,
2
791 F.3d 255 (4th Cir. 2015) and United States v. Simmons, 649
F.3d 237 (4th Cir. 2011).
authorization
to
file
a
The Fourth Circuit denied Petitioner
second
or
successive
§
2255
motion
because the Supreme Court has not made the decisions in Newbold
and
Simmons
retroactively
applicable
review, as required under § 2255(h).
II.
to
cases
on
collateral
(ECF No. 1-1 at 10-11.)
DISCUSSION
“[A] federal prisoner's first (and most often only) route
for collateral review of his conviction or sentence is under §
2255.”
Bruce v. Warden Lewisburg USP, No. 14-4284, 2017 WL
3597705, at *4 (3d Cir. Aug. 22, 2017).
provided a saving clause in § 2255(e):
Congress, however,
“a federal prisoner may
resort to § 2241 only if he can establish that ‘the remedy by
motion [under § 2255] is inadequate or ineffective to test the
legality of his detention.’”
Id. (citations omitted.)
Here, Petitioner was denied authorization to file a second
or successive petition under § 2255(h) because the Supreme Court
has not made Newbold and Simmons retroactively applicable for
purposes
of
collateral
review.
The
Third
Circuit
Court
of
Appeals currently recognizes only one exception to the general
rule
that
sentence
Petitioner
in
a
petitioner
the
“had
must
sentencing
no
earlier
challenge
court
under
opportunity
his
§
to
conviction
2255,
and
when
the
challenge
his
conviction for a crime that an intervening change in substantive
3
law may negate.”
In re Dorsainvil, 119 F.3d 245, 251 (3d Cir.
1997).
III. CONCLUSION
For these reasons, this Court lacks jurisdiction and an
Order will accompany this Opinion.
Dated: October 18, 2017
s/Renée Marie Bumb
RENÉE MARIE BUMB
United States District Judge
4
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