Kirksey v. Samuels, (3rd Cir. 2007)
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CLD-227 NOT PRECEDENTIAL
U N IT E D STATES COURT OF APPEALS
F O R THE THIRD CIRCUIT
N O . 06-4733
A N T H O N Y KIRKSEY,
Appellant
v. C H A R L E S E. SAMUELS
O n Appeal From the United States District Court
F o r the District of New Jersey
(D .C . Civ. No. 06-cv-0477)
D is tric t Judge: Honorable Robert B. Kugler
S u b m itte d For Possible Summary Action
Under Third Circuit L.A.R. 27.4 and I.O.P. 10.6
M a y 10, 2007
B e f o re : RENDELL, SMITH AND JORDAN, CIRCUIT JUDGES
(F ile d : June 11, 2007
O P IN IO N
P E R CURIAM
A n th o n y Kirksey appeals from the District Court's order dismissing his petition for
a writ of habeas corpus under 28U.S.C. § 2241. Because Kirksey's appeal presents no
s u b s ta n tia l question, we will grant the Government's motion for summary affirmance.
In 2002, Kirksey was convicted in the United States District Court for the Eastern D is tric t of Michigan of possession with intent to distribute more than 500 grams of c o c ain e . He was sentenced to 137 months' imprisonment and eight years of supervised release . He is currently serving his sentence at the Federal Correctional Institution at Fort D ix , New Jersey. Although he did not file a direct appeal, Kirksey filed a motion to v a c ate , correct, or set aside his sentence under 28U.S.C. § 2255. The motion was denied.
K irk s e y filed this petition for habeas corpus in the United States District Court for th e District of New Jersey, challenging the BOP's computation of the beginning of his te rm of supervised release. Kirksey argued that the maximum sentence authorized by the U n ite d States Sentencing Guidelines was 137 months' imprisonment and, thus, the im p o s itio n of eight years' supervised release amounted to double jeopardy in violation of th e Fifth Amendment. He also argued that the imposition of supervised release after his c u sto d ia l sentence violated 18U.S.C. § 3583(a), which allows a term of supervised re le a se to be imposed only as "part of the sentence." Kirksey claimed that in his case, the s u p e r v is e d release term did not serve as part of the sentence, which was 137 months' im p riso n m e n t, but as an additional sentence. In response to the Government's motion to d is m is s , Kirksey amended his petition to claim that he was merely objecting to the Bureau o f Prisons' calculation of his sentence rather than its validity.
T h e District Court dismissed Kirksey's petition for lack of jurisdiction. The D is tric t Court found that Kirksey was attempting to challenge the validity of his sentence a n d , therefore, needed to file a § 2255 motion in the Eastern District of Michigan.
Kirksey filed a motion to amend or alter the judgment under FED. R. CIV. P. 59(e), which w a s denied. He then appealed. We will affirm.
W e have jurisdiction pursuant to 28U.S.C. § 1291. Our review of a District C o u rt's decision to dismiss a § 2241 petition is plenary. See Cradle v. U.S. ex rel. Miner, 2 9
G e n e ra lly, a challenge to the validity of a federal conviction or sentence must be b ro u g h t in a § 2255 motion. See Davis v. United States, 417 U.S. 333, 343 (1974). The " sa v in g s clause" of § 2255 provides that a federal prisoner may proceed under § 2241 o n ly if the remedy provided by § 2255 is inadequate or ineffective to test the legality of h is detention. See § 2255; In re Dorsainvil, 119 F.3d 245, 249-51 (3d Cir. 1997). "A § 2255 motion is inadequate or ineffective only where the petitioner demonstrates that s o m e limitation of scope or procedure would prevent a § 2255 proceeding from affording h im a full hearing and adjudication of his claims." Cradle, 290 F.3d at 538. The fact that a petitioner has previously been denied relief, cannot meet the requirements for filing a s e c o n d or successive § 2255 motion, or is unable to comply with § 2255's statute of lim ita tio n , is insufficient to justify proceeding under § 2241. Id.
K irk s e y's claim is a thinly disguised attack on the validity of his sentence and he p ro v id e s no argument why § 2255 is inadequate or ineffective. Kirksey could have raised this claim either on direct appeal or in his previous § 2255 motion. To the extent that K irk s e y is challenging the administration of his sentence, his arguments are without m erit. See United States v. Jenkins, 42 F.3d 1370, 1371 (11th Cir.1995).
In short, upon consideration of Kirksey's petition and "Motion Opposing Summary A ctio n ," we conclude that his appeal presents us with no substantial question. See Third C irc u it L.A.R. 27.4 and I.O.P. 10.6. Accordingly, we grant the Government's motion for s u m m a ry affirmance and will affirm the District Court's order.
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This document cites
- U.S. Supreme Court - Davis v. United States, 417 U.S. 333 (1974)
- U.S. Court of Appeals for the Third Circuit - in Re Ocsulis Dorsainvil, Petitioner., 119 F.3d 245 (3rd Cir. 1997)
- U.S. Court of Appeals for the Third Circuit - Mark D. Tourscher, Appellant v. Martin Horn, Secretary of the Pa. Dept. of Corrections; John Mccullough, Superintendent ,(D.C. Civil No. 98-Cv-00176J), 184 F.3d 236 (3rd Cir. 1999)
- U.S. Court of Appeals for the Eleventh Circuit - United States of America, Plaintiff-Appellee, v. Carlton Jenkins, Defendant-Appellant., 42 F.3d 1370 (11th Cir. 1995)
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