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


12-12-2007

Board v. Williamson
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-3610




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BLD-34                                                      NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ___________

                                    No. 07-3610
                                    ___________

                                 DARRYL BOARD,

                                          Appellant

                                           v.

                          TROY WILLIAMSON, Warden;
                              THOMAS MARINO
                     ____________________________________

                   On Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                              (D.C. Civil No. 06-cv-01512)
                   District Judge: Honorable Christopher C. Conner
                     ____________________________________

             Submitted for Possible Dismissal Due to Lack of Timely Filing
         or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                   October 25, 2007

                  Before: McKee, Rendell and Smith, Circuit Judges


                             (Filed: December 12, 2007)
                                      _________

                                      OPINION
                                     _________

PER CURIAM

    Darryl Board, a federal inmate serving his time at the United States Penitentiary in
Lewisburg, Pennsylvania, for armed robbery and firearms convictions, filed a petition

pursuant to 28 U.S.C. § 2241 to challenge his sentence. Most generally, he claimed that

he should not have received a sentence enhancement under 18 U.S.C. § 924(c) for a

second or subsequent crime as a habitual offender. Board contended that his challenge

should be heard in a § 2241 petition because 28 U.S.C. § 2255 provided an inadequate

and ineffective remedy given that its gatekeeping provisions would bar his § 2255

motion.1

       On March 9, 2007, the District Court dismissed Board’s § 2241 petition for lack of

jurisdiction. On March 16, 2007, Board filed a motion for reconsideration. While the

motion for reconsideration was pending, on May 4, 2007, Board filed a document that he

described in its certificate of service as a notice of appeal. In the document, written like a

letter, he stated the following: “I intend to appeal your memorandum and order to the

Court of Appeals for the thrid [sic] Circuit.” He further advised the District Court that he

would ask us to “reverse or modify the Judgement [sic] of the District Court” for reasons

that spanned six pages. The District Court docketed the document (and an accompanying

letter and attached documents in support of his arguments in the District Court) as a letter

regarding reconsideration of the District Court’s order.

       On June 13, 2007, the District Court denied Board’s motion for reconsideration.



   1
   As the District Court sets forth in greater detail, in addition to filing a direct appeal,
Board previously challenged his 1994 conviction and sentence by filing a § 2255 motion,
a motion to file a second or successive § 2255 motion, and a § 2241 petition.

                                              2
On June 21, 2007, at the latest, Board filed a letter in which he stated that he “would like

to now re-submit [his] may [sic] 4th request for an appeal to the thrid [sic] Circuit.” He

also asked the District Court to consider his reasons for appeal, which he detailed over

three pages. In his certificate of service, Board described his filing as a “request for

appeal to the Thrid [sic] Circuit / and request to have Judge Conner review my reasons for

an appeal to the Thrid [sic] Circuit.” With his letter, he submitted the documents he filed

on May 4, 2007. The District Court docketed the filing as a second motion for

reconsideration. On July 13, 2007, the District Court denied what it had termed a second

motion for reconsideration. In its order, citing 28 U.S.C. § 2253, the District Court

explained to Board that he did not have to seek the District Court’s permission to file an

appeal with us.

       In June and July, Board sought forms from our Clerk’s Office, but he was advised

that he was not entitled to them until he filed a notice of appeal in the District Court. In

reply, on August 13, 2007, he sent a copy of the District Court’s order in which the

District Court directed him to appeal, if he wished to, pursuant to 28 U.S.C. § 2253. He

also attached what he had submitted to the District Court on May 4, 2007, and expressed

his confusion about how he could perfect the filing of his appeal. Our Clerk’s Office

forwarded the filing to the District Court, noting that it should be construed as a notice of

appeal. On August 13, 2007, the District Court docketed the notice of appeal.

       Before we consider the merits of this appeal, we must consider its scope. We have



                                              3
jurisdiction only over those orders for which Board timely filed a notice of appeal. See

Bowles v. Russell, 127 S.Ct. 2360, 2363-66 (2007). A notice of appeal in a civil case in

which the Government is a party must be filed within 60 days of the entry of the order

appealed from. See Fed. R. App. P. 4(a)(1)(B). If a litigant files a motion for

reconsideration, the time to appeal runs from the entry of the order resolving that motion.

See Fed. R. App. P. 4(a)(4)(A). Also, if a party files a notice of appeal after a court enters

a judgment but before ruling on a pending motion for reconsideration or a similar motion,

the notice becomes effective when the court enters an order disposing of the last

remaining motion for reconsideration (or similar motion). See Fed. R. App. P.

4(a)(4)(B)(i). A party who wishes to challenge an order denying a motion for

reconsideration must file an additional notice of appeal or amend a previously-filed notice

of appeal. See Fed. R. App. P. 4(a)(4)(B)(ii).

       If we view the submission ultimately filed in the District Court as the notice of a

appeal on August 13, 2007, as Board’s notice of appeal, then we can only consider the

District Court’s order of July 13, 2007. However, upon review of the documents Board

filed on May 4, 2007, and his attempt to submit those documents on June 21, 2007, we

conclude that Board evinced an intention to appeal early enough to secure our review of

the District Court’s March order dismissing his § 2241 petition. We also conclude that he

renewed his intention to appeal in such a time and manner as to put an appeal of the June

13, 2007 order before us, too.



                                              4
       The filing requirements of Federal Rule of Appellate Procedure 3(c) are liberally

construed. See Smith v. Barry, 502 U.S. 244, 248 (1992). Although Board framed his

notice of appeal in letter form, he expressed his intention to appeal to the “Court of

Appeals for the thrid [sic] Circuit” from the District Court’s order, which was readily

identifiable from the context (including quotes from the District Court’s accompanying

memorandum). Also, in his certificate of service, he described his submission as a notice

of appeal. Accordingly, we conclude that he satisfied the requirements for filing a notice

of appeal on May 4, 2007. See United States v. Carson, 969 F.2d 1480, 1486 (3d Cir.

1992); see also Fed. R. App. P. 3(c); L.A.R. 3.4. The notice of appeal of the order of

March 9, 2007, became effective when the District Court ruled on June 13, 2007, on the

motion for reconsideration that Board had timely filed, see Fed. R. App. P. 59, on March

16, 2007. See Fed. R. App. P. 4(a)(4)(A) & (B). Board’s renewed submission on June

21, 2007, of the May 4, 2007 notice of appeal with additional argument about the District

Court’s decision to deny the motion for reconsideration on June 13, 2007, expanded the

scope of the appeal to include the June 13, 2007 order, too. Therefore, we do not dismiss

the appeal for lack of jurisdiction.

       Upon consideration of the merits of this appeal, we will summarily affirm the

judgment of the District Court because no substantial issue is presented on appeal.

See L.A.R. 27.4; I.O.P. 10.6. The District Court was without jurisdiction to consider

Board’s claims under 28 U.S.C. § 2241. As the District Court concluded, Board cannot



                                              5
bring his claims under § 2241, because a motion to challenge his conviction and sentence

pursuant to 28 U.S.C. § 2255 is not “inadequate or ineffective.” 28 U.S.C. § 2255 ¶ 5.

       Section 2255 has been considered inadequate and ineffective for a petitioner

convicted and imprisoned for conduct since deemed not to be criminal. See In re

Dorsainvil, 119 F.3d 245, 251 (3d Cir. 1997). However, § 2255 is not inadequate or

ineffective just because a petitioner, like Board, who has previously filed a § 2555 motion

and unsuccessfully sought permission to file another, is unable to meet its stringent

gatekeeping requirements. See id.

       Board does not make a claim that fits under the In re Dorsainvil exception. He

essentially claimed that he could not be sentenced as a habitual offender because his

indictment did not describe the specific firearm used in robberies he committed, as he

maintains it must pursuant to the 1998 amendments to § 924(c)(1) and Castillo v. United

States, 530 U.S. 120, 131 (2000). His claim pertains to the integrity of his sentence, not

to the criminality of his conduct, so he could not bring it under § 2241.

       In sum, for the reasons given, the District Court properly dismissed Board’s § 2241

petition and denied his motions for reconsideration. Accordingly, we will summarily

affirm the judgment of the District Court.




                                             6
