                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-1-2009

USA v. Shynnell Walker
Precedential or Non-Precedential: Non-Precedential

Docket No. 09-1179




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Recommended Citation
"USA v. Shynnell Walker" (2009). 2009 Decisions. Paper 1253.
http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1253


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ALD-188                                                  NOT PRECEDENTIAL

                  UNITED STATES COURT OF APPEALS
                       FOR THE THIRD CIRCUIT
                            ___________

                                 No. 09-1179
                                 ___________

                      UNITED STATES OF AMERICA

                                       v.

                       SHYNNELL ISAAC WALKER,
                         a/k/a Shaw, a/k/a Shawnell

                               Shynnell Isaac Walker,
                                         Appellant
                 ____________________________________

                On Appeal from the United States District Court
                    for the Middle District of Pennsylvania
                   (D.C. Civil Action No. 05-cr-00211-005)
                District Judge: Honorable James F. McClure, Jr.
                 ____________________________________

                Submitted for Possible Dismissal For Lack of Jurisdiction
                      or Possible Summary Action Pursuant to
                    Third Circuit LAR 27.4 and I.O.P. 10.6(a)
                                May 14, 2009

          Before: SLOVITER, FUENTES and JORDAN , Circuit Judges

                         (Opinion filed: June 1, 2009)

                                 ___________

                                  OPINION
                                 ___________

PER CURIAM
       Appellant Shynell Walker, a pro se prisoner, appeals from the District Court’s

denial of his “Formal Motion to Review and Investigate Issues For Approate [sic]

disposition.” For the reasons set forth below, we will summarily affirm. See I.O.P. 10.6.

                                           I.

       On July 11, 2006, Walker pled guilty in the United States District Court for the

Middle District of Pennsylvania to possession and distribution of a controlled substance

in violation of 21 U.S.C. § 841(a)(1). On January 25, 2007, the Court sentenced Walker

to 70 months of imprisonment. On September 9, 2008, Walker filed a “Formal Motion to

Review and Investigate Issues For Approate [sic] disposition.” After reviewing the

motion, the Court denied it without prejudice, finding that such an action challenging his

sentence should be filed pursuant to 28 U.S.C. § 2255.

                                           II.

       We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. The District

Court's order was entered on September 2, 2008. Walker filed his notice of appeal on

January 13, 2009, well beyond the 60-day period prescribed by Fed. R. App. P.

4(a)(1)(B). The District Court's final order, however, was not accompanied by a separate

judgment as required; thus, the time for filing an appeal did not begin to run with the

issuance of that order. See Fed R. Civ. P. 58; see also See LeBoon v. Lancaster Jewish

Community Center Ass'n, 503 F.3d 217, 223 (3d Cir. 2007). An order is considered a

separate document only if (1) it is self-contained and separate from the opinion; (2) it



                                                 2
notes the relief granted; and (3) it omits (or at least substantially omits) the court's reasons

for disposing of the claims. See LeBoon, 503 F.3d at 224. The District Court's order

failed to satisfy the first and third criteria.

       When a judgment is required to be set forth on a separate document, that judgment

is not treated as entered until it is set forth on a separate document or until the expiration

of 150 days after its entry in the civil docket under Fed. R. Civ. P. 79(a), whichever

occurs first. See Fed. R. App. P. 4(a)(7)(A)(ii). Accordingly, entry of judgment and

commencement of the 60-day period for filing a notice of appeal did not occur in this case

until 150 days after docketing of the District Court’s order, i.e., on February 6, 2009. See

LeBoon, 503 F.3d at 223. As such, Walker’s notice of appeal was timely and we have

jurisdiction over the appeal. Id. at. 225.

       We exercise plenary review over the District Court's legal conclusions and apply a

clearly erroneous standard to its factual findings. See Cradle v. United States ex rel.

Miner, 290 F.3d 536, 538 (3d Cir. 2002). Upon review, we agree with the District Court

that Walker may raise his claims – which concern the legality of his indictment – only in

a § 2255 motion. A § 2255 motion is the presumptive means by which a federal prisoner

may challenge his conviction or sentence.1 See Davis v. United States, 417 U.S. 333,

343-44 (1974). Walker has not shown that such a motion would be inadequate to address



   1
    We note that the filing of a § 2255 motion right now would be premature as Walker’s
direct appeal remains pending. See Kapral v. United States, 166 F.3d 565, 570 (3d Cir.
1999).

                                                  3
his claims.

       As Walker's appeal presents no substantial question, we will summarily affirm.

See Third Cir. LAR 27.4; I.O.P. 10.6.




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