GLD-147                                                        NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 12-4192
                                      ___________

                           UNITED STATES OF AMERICA

                                            v.

                                CHARLES FELIX,
                                    Appellant
                      ____________________________________

                           On Appeal from the District Court
                          for the District of the Virgin Islands
                             (D.C. Crim. No. 76-cr-00258)
                      District Judge: Honorable Curtis V. Gómez
                      ____________________________________

                Submitted for a Decision on the Issuance of a Certificate
                  of Appealability and for Possible Summary Action
                  Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                    March 7, 2013

            Before: FUENTES, FISHER and GREENBERG, Circuit Judges

                            (Opinion filed: March 15, 2013 )
                                       _________

                                       OPINION
                                       _________

PER CURIAM

      Since 1977, Charles Felix has been serving a sentence of life imprisonment for

first-degree murder imposed by the District Court in its former capacity as a Virgin
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Islands local court. In 2009, he filed pro se the petition at issue here, which he captioned

as a “motion for writ of habeas corpus” and supplemented with several other filings.

Felix requested release from prison on the ground that his sentence does not preclude

parole under Virgin Islands law and that, although he has been eligible for parole

pursuant to 5 V.I.C. § 4601 since 1992, he has not yet received a parole hearing.

       The District Court properly identified Felix’s challenge as one to the lack of parole

consideration but dismissed it for lack of subject matter jurisdiction under Parrott v.

Government of the Virgin Islands, 230 F.3d 615 (3d Cir. 2000). In that case, we held that

the District Court lacks jurisdiction under the Virgin Islands habeas statute, 5 V.I.C.

§ 1303, over challenges to territorial convictions by the District Court sitting as a

territorial court. See Parrott, 230 F.3d at 621. The District Court acknowledged that

Felix invoked the Virgin Islands parole statute rather than the Virgin Islands habeas

statute, but it reasoned that the distinction makes no jurisdictional difference.

       The nature of Felix’s challenge does indeed make a difference, however, as a

decision that we issued on the same day as Parrot (but that the Government did not bring

to the District Court’s attention) makes clear. In Callwood v. Enos, 230 F.3d 627 (3d Cir.

2000), the petitioner brought a due process challenge to the Virgin Islands Bureau of

Correction’s failure to recommend him for parole eligibility and sought a parole hearing

under the same Virgin Islands statute at issue here. See id. at 629. Like Felix, the

petitioner had been convicted of a territorial crime by the District Court sitting as a

territorial court. See id. at 628-29. Thus, as in this case, “the Virgin Islands is

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responsible for execution of his . . . sentence, including his eligibility for parole.” Id. at

631. We held that the District Court has jurisdiction under 28 U.S.C. § 2241 to review

the Virgin Islands’ execution of the petitioner’s sentence. See id. at 633. We also

explained that § 2241 petitioners must first exhaust parole challenges in territorial court

because “the Territorial Court [now called the Virgin Islands Superior Court] will no

doubt be more familiar with the provisions and requirements of the territorial parole

statute and should be given an opportunity to provide a remedy, if appropriate, before

[petitioner] seeks federal habeas corpus relief.” Id. at 634.

       Felix’s pro se petition thus raises a challenge to the execution of his sentence over

which the District Court had jurisdiction under § 2241. The record does not reveal

whether Felix has exhausted that challenge in the territorial courts. It appears that he may

at least have attempted to do so, however, because he asserted in a motion for counsel in

the District Court: “Who have jurisdiction of Felix’s case? I was sent from Superior

Court, to District Court and back.” Thus, we will vacate and remand for the District

Court to exercise its jurisdiction over Felix’s petition. We express no opinion on the

merits of Felix’s claim or on whether he has exhausted it, but we note that Felix is

entitled to habeas relief under § 2241 only if the execution of his sentence is in violation




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of federal law. See Callwood, 230 F.3d at 634 n.8.1




       1
        Felix does not require a certificate of appealability to appeal the dismissal of his
§ 2241 petition, see Callwood, 230 F.3d at 633 n.7, and we have jurisdiction pursuant to
28 U.S.C. §§ 1291 and 2253. Felix’s petition was docketed as a motion under 28 U.S.C.
§ 2255 in the District Court, but he did not caption it as a § 2255 motion and the District
Court properly declined to treat it as one.


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