Boice v. KIRBY

Filing 6

OPINION. Signed by Judge Renee Marie Bumb on 10/18/2017. (tf, n.m.)

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  NOT FOR PUBLICATION UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY CAMDEN VICINAGE ________________________ PHILLIP GERMAINE BOICE, Petitioner, v. MARK A. KIRBY, Respondent. ________________________ : : : : : : : : : : : : 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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