Boice v. KIRBY
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NOT FOR PUBLICATION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
PHILLIP GERMAINE BOICE,
MARK A. KIRBY,
Civ. No. 17-5722 (RMB)
BUMB, United States District Judge
Eastern District of North Carolina transferred this action under
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
For the reasons discussed below, this Court lacks
jurisdiction under § 2241.
On July 7, 2005, Petitioner entered a plea of guilty, in
Carolina, to possession of a firearm and ammunition by a felon,
in violation of 18 U.S.C. §§ 922(g)(1), 924.
(ECF No. 1-1 at 6,
Petitioner appealed to the Fourth Circuit Court of Appeals, and
the Fourth Circuit dismissed the appeal.
under § 2255 on May 14, 2007.
(Id. at 7, ¶7.)
(Id. at 6-7, ¶7.)
Fourth Circuit dismissed the appeal.
Petitioner appealed, and 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,
791 F.3d 255 (4th Cir. 2015) and United States v. Simmons, 649
F.3d 237 (4th Cir. 2011).
The Fourth Circuit denied Petitioner
because the Supreme Court has not made the decisions in Newbold
review, as required under § 2255(h).
(ECF No. 1-1 at 10-11.)
“[A] federal prisoner's first (and most often only) route
for collateral review of his conviction or sentence is under §
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):
“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
Appeals currently recognizes only one exception to the general
conviction for a crime that an intervening change in substantive
law may negate.”
In re Dorsainvil, 119 F.3d 245, 251 (3d Cir.
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
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