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


6-11-2007

Kirksey v. Samuels
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-4733




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"Kirksey v. Samuels" (2007). 2007 Decisions. Paper 963.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/963


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CLD-227                                                        NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT

                                     NO. 06-4733
                                  ________________

                               ANTHONY KIRKSEY,
                                           Appellant

                                            v.

                              CHARLES E. SAMUELS

                    _______________________________________

                   On Appeal From the United States District Court
                            For the District of New Jersey
                              (D.C. Civ. No. 06-cv-0477)
                     District Judge: Honorable Robert B. Kugler
                   _______________________________________

                      Submitted For Possible Summary Action
                    Under Third Circuit L.A.R. 27.4 and I.O.P. 10.6
                                    May 10, 2007

           Before: RENDELL, SMITH AND JORDAN, CIRCUIT JUDGES

                               (Filed: June 11, 2007 )
                             _______________________

                                    OPINION
                             _______________________

PER CURIAM

      Anthony Kirksey appeals from the District Court’s order dismissing his petition for

a writ of habeas corpus under 28 U.S.C. § 2241. Because Kirksey’s appeal presents no

substantial 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

District of Michigan of possession with intent to distribute more than 500 grams of

cocaine. 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

Dix, New Jersey. Although he did not file a direct appeal, Kirksey filed a motion to

vacate, correct, or set aside his sentence under 28 U.S.C. § 2255. The motion was denied.

       Kirksey filed this petition for habeas corpus in the United States District Court for

the District of New Jersey, challenging the BOP’s computation of the beginning of his

term of supervised release. Kirksey argued that the maximum sentence authorized by the

United States Sentencing Guidelines was 137 months’ imprisonment and, thus, the

imposition of eight years’ supervised release amounted to double jeopardy in violation of

the Fifth Amendment. He also argued that the imposition of supervised release after his

custodial sentence violated 18 U.S.C. § 3583(a), which allows a term of supervised

release to be imposed only as “part of the sentence.” Kirksey claimed that in his case, the

supervised release term did not serve as part of the sentence, which was 137 months’

imprisonment, but as an additional sentence. In response to the Government’s motion to

dismiss, Kirksey amended his petition to claim that he was merely objecting to the Bureau

of Prisons’ calculation of his sentence rather than its validity.

       The District Court dismissed Kirksey’s petition for lack of jurisdiction. The

District Court found that Kirksey was attempting to challenge the validity of his sentence



                                               2
and, therefore, needed to file a § 2255 motion in the Eastern District of Michigan.

Kirksey filed a motion to amend or alter the judgment under F ED. R. C IV. P. 59(e), which

was denied. He then appealed. We will affirm.

       We have jurisdiction pursuant to 28 U.S.C. § 1291. Our review of a District

Court's decision to dismiss a § 2241 petition is plenary. See Cradle v. U.S. ex rel. Miner,

290 F.3d 536, 538 (3d Cir. 2002). We may affirm the District Court on any ground

supported by the record. Tourscher v. McCullough, 184 F.3d 236, 239 (3d Cir. 1999).

       Generally, a challenge to the validity of a federal conviction or sentence must be

brought in a § 2255 motion. See Davis v. United States, 417 U.S. 333, 343 (1974). The

“savings clause” of § 2255 provides that a federal prisoner may proceed under § 2241

only if the remedy provided by § 2255 is inadequate or ineffective to test the legality of

his 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

some limitation of scope or procedure would prevent a § 2255 proceeding from affording

him 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

second or successive § 2255 motion, or is unable to comply with § 2255's statute of

limitation, is insufficient to justify proceeding under § 2241. Id.

       Kirksey’s claim is a thinly disguised attack on the validity of his sentence and he

provides no argument why § 2255 is inadequate or ineffective. Kirksey could have raised



                                              3
this claim either on direct appeal or in his previous § 2255 motion. To the extent that

Kirksey is challenging the administration of his sentence, his arguments are without

merit. 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

Action,” we conclude that his appeal presents us with no substantial question. See Third

Circuit L.A.R. 27.4 and I.O.P. 10.6. Accordingly, we grant the Government’s motion for

summary affirmance and will affirm the District Court’s order.




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