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Black v. Kirby

United States District Court, D. New Jersey

November 27, 2017

RODERICK BLACK, Petitioner,
v.
MARK KIRBY, Respondent.

          Roderick Black, # 28287-054 Petitioner Pro se

          OPINION

          NOEL L. HILLMAN, U.S.D.J.

          Petitioner Roderick Black, a prisoner confined at the Federal Correctional Institution (“FCI”) in Fairton, New Jersey, filed this writ of habeas corpus under 28 U.S.C. § 2241, challenging his conviction and sentence. (ECF No. 1). Because it appears from a review of the Petition that this Court lacks jurisdiction under 28 U.S.C. § 2241, the Petition will be dismissed without prejudice.

         I. BACKGROUND

         This Court outlined the procedural history of Petitioner's criminal matters in an opinion dismissing a previous § 2241 from Petitioner:

On September 2, 1994, Black was convicted of various drug trafficking offenses, in the United States District Court for the Eastern District of North Carolina. United States v. Black, 97 F.3d 1449 (4th Cir. 1996). He was also convicted of violating 18 U.S.C. 924(c)(1), which criminalizes using or carrying a firearm during a drug trafficking crime, and engaging in a continuing criminal enterprise (CCE) in violation of 21 U.S.C. 848. Id. Black was sentenced to consecutive terms of life in prison and sixty months. Id. The United States Court of Appeals for the Fourth Circuit affirmed the judgment of the district court on September 18, 1996. Id.
In early 2001, Black filed a 28 U.S.C. § 2255 motion with the sentencing court, which denied the motion as untimely. United States v. Black, 19 F. App'x 78 (4th Cir. 2001). He pursued an appeal, and on September 19, 2001, the Fourth Circuit agreed with the district court's conclusion that the § 2255 motion was untimely, denied a certificate of appealability and dismissed the appeal.
On May 2, 2007, Black filed a petition for writ of habeas corpus under 28 U.S.C. § 2241 in the Middle District of Pennsylvania to challenge his 1994 conviction. The district court dismissed the petition on the ground that Black could only challenge his conviction via a § 2255 motion. Black v. Warden, USP Lewisburg, 253 F. App'x 209, 210 (3d Cir. 2007).
This Court also notes that in 2010 Petitioner filed a second motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 in the United States District Court in the Eastern District of North Carolina. In that motion, he alleged ineffective assistance of counsel due to his counsel's failure to properly pursue a motion to reduce his sentence pursuant to 18 U.S.C. § 3582 in the underlying criminal case. The United States District Court for the Eastern District of North Carolina denied Petitioner's motion. Black v. United States, No. 2:10-CV-46-BO, 2010 WL 4860349, at *1 (E.D. N.C. Nov. 22, 2010).
In 2014, Petitioner filed a third motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. In that motion, Petitioner challenged his original sentence of life imprisonment pursuant to the Supreme Court's ruling in Alleyne v. United States, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013). In an Order dated September 17, 2014, the United States District Court for the Eastern District of North Carolina dismissed the motion as a second or successive motion for which Petitioner had not sought authorization to file from the Fourth Circuit Court of Appeals. Black v. United States, No. 2:14-CV-35-BO, 2014 WL 4686677, at *1 (E.D. N.C. Sept. 17, 2014), reconsideration denied, No. 2:14-CV-35-BO, 2014 WL 5307465 (E.D. N.C. Oct. 16, 2014).

Black v. Kirby, No. 16-1553, 2016 WL 3219864, at *1-2 (D.N.J. June 7, 2016).

         In the previous § 2241 petition before this Court, Petitioner argued that he was actually innocent of the life sentence imposed under 21 U.S.C. § 841. Id. He further asserted that § 2255 was inadequate or ineffective to challenge his conviction or sentence because he was sentenced prior to the Supreme Court's decision in Burrage v. United States, 134 S.Ct. 881, 187 L.Ed.2d 715 (2014). Id. The Court found that it was without jurisdiction to consider Petitioner's claims in a § 2241 and denied the petition. Id.

         In the instant Petition, Petitioner argues that pursuant to United States v. Theodoropoulos, 866 F.2d 587 (3d Cir. 1988), Bailey v. United States, 516 U.S. 137 (1995) and Bousley v. United States, 523 U.S. 614 (1998), he is actually innocent of his § 924(c) conviction.[1] (ECF No. 1.)

         II. ...


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