                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-23-2007

Kennedy v. Warden Allenwood
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-1794




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Recommended Citation
"Kennedy v. Warden Allenwood" (2007). 2007 Decisions. Paper 1071.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/1071


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ALD-216                                                NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT

                                    NO. 07-1794
                                 ________________

                              JIMMIE LEE KENNEDY,

                                           Appellant

                                            v.

                          WARDEN, USP ALLENWOOD
                     ____________________________________

                   On Appeal From the United States District Court
                       For the Middle District of Pennsylvania
                             (D.C. Civ. No. 06-cv-1208)
                       District Judge: Honorable Yvette Kane
                   _______________________________________

            Submitted For Possible Dismissal Due to Lack of Timely Filing,
               Possible Dismissal Under 28 U.S.C. § 1915(e)(2)(B), or
            Summary Action Under Third Circuit LAR 27.4 and I.O.P. 10.6
                                     May 3, 2007

      Before: SLOVITER, CHAGARES AND GREENBERG, CIRCUIT JUDGES

                                 (Filed May 23, 2007)

                             _______________________

                                     OPINION
                             _______________________

PER CURIAM

      Jimmie Lee Kennedy was convicted by jury in the United States District Court for

the District of Columbia for robbery and weapons offenses. When he filed his second
petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 in the United States

District Court for the Middle District of Pennsylvania, he was serving his sentence at

FCI-Allenwood.1

       As he unsuccessfully argued in his direct appeal, see United States v. Kennedy,

133 F.3d 53, 55 (D.C. Cir. 1998), Kennedy claimed in his petition that the Government

failed to show service of the information beyond a reasonable doubt. He also argued the

following: (1) he is “actually, factually innocent of his life sentence”; (2) he is actually

innocent of the crimes charged in the indictment; (3) he suffered a miscarriage of justice

at sentencing; (4) there were irregularities and improprieties in the indictment; (5) the

District of Columbia District Court lacked jurisdiction over District of Columbia crimes;

(6) the District Court improperly enhanced his sentence; (7) his right of confrontation was

denied; (8) he suffered a miscarriage of justice “with respect to the unconstitutionality of

armed career and career offender act and statute” in light of Apprendi v. New Jersey, 530

U.S. 466 (2000), Blakely v. Washington, 542 U.S. 296 (2004), and United States v.

Booker, 543 U.S. 220 (2005); (9) the application of 18 U.S.C. § 3559(c) is fundamentally

unfair and unconstitutional; (10) his trial and appellate counsel rendered ineffective

assistance of counsel; (11) the District Court improperly instructed the jury; and (12) “a


  1
   Without applying to this Court for permission to do so, the Bureau of Prisons recently
transferred Kennedy to a federal prison in Indiana. Nonetheless, we retain jurisdiction
over this appeal. See Goodman v. Keohane, 663 F.2d 1044, 1047 (11th Cir. 1981)
(holding that transfers in violation of Rule 23 of the Federal Rules of Appellate Procedure
do not divest a reviewing court of jurisdiction); cf. Rumsfeld v. Padilla, 542 U.S. 426,
441 (2004); Ex parte Endo, 323 U.S. 283, 307 (1944)).

                                              2
life sentence on counts one through four were unauthorized under The Hobbs Act and 924

(c) counts under 18 usc § 3559 (c).”

       The District Court, concluding that Kennedy had raised the same claims in his first

§ 2241 motion, held that its earlier analysis, see Kennedy v. USP Allenwood Warden, No.

05- 2561, 2006 WL 126984 (M.D. Pa. Jan. 17, 2006), applied. Specifically, the District

Court noted that it had dismissed the earlier petition because Kennedy had not shown that

28 U.S.C. § 2255 was an inadequate or ineffective remedy. The District Court further

stated that there was no evidence that Kennedy had pursued further relief in the

sentencing court through a § 2255 motion or otherwise. Accordingly, on July 28, 2006,

the District Court dismissed Kennedy’s second § 2241 petition as it had dismissed his

first – without prejudice to Kennedy’s right to seek authorization in the appropriate court

of appeals to file a second or successive § 2255 motion.

       Kennedy filed a motion for reconsideration, arguing that he had evidence that he

had sought relief in the sentencing court. He showed that he had filed an § 2244

application for leave to file a second or successive § 2255 motion and that the United

States Court of Appeals for the District of Columbia had denied it. While his motion for

reconsideration was pending, he instituted an appeal by filing a notice of appeal. By

order of the Clerk, Kennedy’s appeal was stayed pending resolution of the motion for

reconsideration. On October 26, 2006, the District Court granted Kennedy’s motion for

reconsideration and vacated its order of July 28, 2006.

       Also on October 26, 2006, the District Court reconsidered the § 2241 petition in an

                                             3
“amended order,” noting Kennedy’s unsuccessful § 2244 application, but again

dismissing Kennedy’s petition. The District Court explained that Kennedy’s personal

inability to file another § 2255 motion was not enough to show that the § 2255 remedy

was inadequate or ineffective. Kennedy filed another motion for reconsideration and

another notice of appeal. He captioned the notice of appeal as an “amended notice of

appeal,” and specified therein that he appealed from the October 26, 2006 order

dismissing his petition. Shortly thereafter, on November 15, 2006, the Clerk of this Court

sent a letter to the District Court Clerk, notifying the District Court that the new notice of

appeal would be considered an amendment in the above-captioned case and no new

appeal would open. By Clerk’s order dated November 16, 2006, this case was stayed

pending resolution of Kennedy’s second motion for reconsideration. On January 18,

2007, the District Court denied the motion.

       We subsequently considered Kennedy’s appeal and summarily affirmed the

District Court’s October 26, 2006 order dismissing Kennedy’s petition. See Kennedy v.

Warden, USP Allenwood, C.A. No. 06-3786 (3d Cir. Feb. 16, 2007) (non-precedential

opinion). Briefly stated, the District Court was without jurisdiction to consider

Kennedy’s claims under 28 U.S.C. § 2241. Kennedy could not proceed under § 2241

because a motion to challenge his conviction and sentence pursuant to 28 U.S.C. § 2255

was not “inadequate or ineffective.” 28 U.S.C. § 2255.

       After we ruled on Kennedy’s appeal of the October 26, 2006 order, Kennedy

timely filed this appeal of the January 18, 2007 order denying his motion for

                                              4
reconsideration. The Government asks that we summarily dismiss this appeal, contending

that we have already affirmed the order at issue. We did not previously consider the

January 18, 2007 order. See Fed. R. App. P. 4(B)(ii). Accordingly, we deny the

Government’s motion.

       Nonetheless, we will dismiss Kennedy’s appeal pursuant to 28 U.S.C.

§ 1915(e)(2)(B)(i). Kennedy’s appeal is without merit in fact or law. Not only did he

present no basis for reconsideration of the District Court’s October 26, 2006 order, but he

also filed his appeal of the order denying the motion for reconsideration after we had

explained to him why the October 26, 2006 order was correct.




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