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


2-16-2007

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Precedential or Non-Precedential: Non-Precedential

Docket No. 06-3786




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2007

Recommended Citation
"Kennedy v. Warden Allenwood" (2007). 2007 Decisions. Paper 1600.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/1600


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2007 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
ALD-118                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                     No. 06-3786
                                  ________________

                               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-01208)
                        District Judge: Honorable Yvette Kane
                    _______________________________________


 Submitted For 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
                                   February 8, 2007

     Before:     SLOVITER, CHAGARES AND NYGAARD, CIRCUIT JUDGES

                               (Filed February 16, 2007)
                              _______________________

                                      OPINION
                              _______________________

PER CURIAM

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

District of Columbia for robbery and weapons offenses, is serving his sentence at FCI-

Allenwood. In the United States District Court for the Middle District of Pennsylvania,
he filed a second petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241.

       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

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

                                              2
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 this 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

“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

                                             3
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, so we now consider Kennedy’s appeal.

       We will affirm the District Court’s October 26, 2006 order dismissing Kennedy’s

petition because no substantial question is presented on appeal.1 See Local Appellate

Rule 27.4; I.O.P. 10.6. The District Court was without jurisdiction to consider Kennedy’s

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

       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 Kennedy, whose § 2244 application was denied

by a court of appeals, is unable to meet its stringent gatekeeping requirements. See id.

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



   1
   We note that any appeal of the order identified in Kennedy’s first notice of appeal is
moot in light of the District Court’s order granting Kennedy’s motion for reconsideration
and vacating its order of July 28, 2006.

                                              4
particular, we note that we have held that § 2255 is not an inadequate or ineffective way

to bring claims based on Apprendi. See Okereke v. United States, 307 F.3d 117, 120-21

(3d Cir. 2002). Moreover, claims under Blakely and Booker are not sufficiently

distinguishable from a claim under Apprendi to meet the In re Dorsainvil exception and

permit Kennedy to seek relief under § 2241. Cf. Okereke, 307 F.3d at 120-21. Also,

success on his other claims would not undermine the criminality of Kennedy’s conduct.

See In re Dorsainvil, 119 F.3d at 251.

       In sum, because the District Court did not err in dismissing Kennedy’s petition, the

District Court’s order will be affirmed.




                                             5
