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Lenworth Parke v. Mark A. Kirby

April 20, 2011

LENWORTH PARKE, PETITIONER,
v.
MARK A. KIRBY, ACTING WARDEN, RESPONDENT.



The opinion of the court was delivered by: Simandle, District Judge:

NOT FOR PUBLICATION

OPINION

Petitioner, Lenworth Parke, a federal prisoner confined at the Federal Correctional Institution in Fairton, New Jersey ("FCI Fairton"), brings this habeas petition pursuant to 28 U.S.C. § 2241, challenging his federal conviction. Petitioner names as party respondent, Acting Warden Mark A. Kirby, as the person having custody over him pursuant to 28 U.S.C. § 2242.

This Court has reviewed the petition, and for the reasons set forth below, will dismiss this habeas action for lack of jurisdiction, as it is a prohibited second or successive motion under 28 U.S.C. § 2255.

I. BACKGROUND

The following facts are taken from the petition and the motion for leave to file a supplemental pleading, and are accepted for purposes of this screening only. The Court has made no findings as to the veracity of petitioner's allegations.

Petitioner states that he was convicted on or about May 28, 1993, in the United States District Court for the Northern District of New York, on charges of murder (of a federal law enforcement officer), conspiracy to distribute cocaine, possession with intent to distribute cocaine, and use of a firearm in a drug trafficking crime. He was sentenced to life imprisonment. Petitioner filed a direct appeal before the United States Court of Appeals for the Second Circuit, which affirmed the conviction and sentence on September 8, 1994. Petitioner then filed a motion to vacate his sentence, pursuant to 28 U.S.C. § 2255, on or about April 16, 1997. His § 2255 motion was denied on April 27, 1998. The Second Circuit affirmed the denial of the § 2255 motion on or about January 17, 2002.

Petitioner filed this § 2241 habeas petition on or about September 13, 2010. He claims that he is illegally incarcerated in violation of his right to due process because the "Pinkerton instruction" given to the jury at trial was unconstitutional. Petitioner also claims that the federal court did not have jurisdiction to try him for the murder of Officer Howard, and that he is factually innocent. He bases his claim of factual innocence on the ground that his trial and appellate counsel were ineffective in violation of his Sixth Amendment rights.

II. DISCUSSION

A. Standards for a Sua Sponte Dismissal

Section 2243 provides in relevant part as follows: A court, justice or judge entertaining an application for a writ of habeas corpus shall forthwith award the writ or issue an order directing the respondent to show cause why the writ should not be granted, unless it appears from the application that the applicant or person detained is not entitled thereto.

Petitioner brings his habeas petition as a pro se litigant.

A pro se pleading is held to less stringent standards than more formal pleadings drafted by lawyers. Estelle v. Gamble, 429 U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520 (1972). A pro se habeas petition and any supporting submissions must be construed liberally and with a measure of tolerance. See Royce v. Hahn, 151 F.3d 116, 118 (3d Cir. 1998); Lewis v. Attorney General, 878 F.2d 714, 721-22 (3d ...


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