Board v. Williamson ( 2007 )

Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
12-12-2007
Board v. Williamson
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-3610
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BLD-34 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 07-3610
___________
DARRYL BOARD,
Appellant
v.
TROY WILLIAMSON, Warden;
THOMAS MARINO
____________________________________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil No. 06-cv-01512)
District Judge: Honorable Christopher C. Conner
____________________________________
Submitted for Possible Dismissal Due to Lack of Timely Filing
or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
October 25, 2007
Before: McKee, Rendell and Smith, Circuit Judges
(Filed: December 12, 2007)
_________
OPINION
_________
PER CURIAM
Darryl Board, a federal inmate serving his time at the United States Penitentiary in
Lewisburg, Pennsylvania, for armed robbery and firearms convictions, filed a petition
pursuant to 28 U.S.C. § 2241 to challenge his sentence. Most generally, he claimed that
he should not have received a sentence enhancement under 18 U.S.C. § 924(c) for a
second or subsequent crime as a habitual offender. Board contended that his challenge
should be heard in a § 2241 petition because 28 U.S.C. § 2255 provided an inadequate
and ineffective remedy given that its gatekeeping provisions would bar his § 2255
motion.1
On March 9, 2007, the District Court dismissed Board’s § 2241 petition for lack of
jurisdiction. On March 16, 2007, Board filed a motion for reconsideration. While the
motion for reconsideration was pending, on May 4, 2007, Board filed a document that he
described in its certificate of service as a notice of appeal. In the document, written like a
letter, he stated the following: “I intend to appeal your memorandum and order to the
Court of Appeals for the thrid [sic] Circuit.” He further advised the District Court that he
would ask us to “reverse or modify the Judgement [sic] of the District Court” for reasons
that spanned six pages. The District Court docketed the document (and an accompanying
letter and attached documents in support of his arguments in the District Court) as a letter
regarding reconsideration of the District Court’s order.
On June 13, 2007, the District Court denied Board’s motion for reconsideration.
1
As the District Court sets forth in greater detail, in addition to filing a direct appeal,
Board previously challenged his 1994 conviction and sentence by filing a § 2255 motion,
a motion to file a second or successive § 2255 motion, and a § 2241 petition.
2
On June 21, 2007, at the latest, Board filed a letter in which he stated that he “would like
to now re-submit [his] may [sic] 4th request for an appeal to the thrid [sic] Circuit.” He
also asked the District Court to consider his reasons for appeal, which he detailed over
three pages. In his certificate of service, Board described his filing as a “request for
appeal to the Thrid [sic] Circuit / and request to have Judge Conner review my reasons for
an appeal to the Thrid [sic] Circuit.” With his letter, he submitted the documents he filed
on May 4, 2007. The District Court docketed the filing as a second motion for
reconsideration. On July 13, 2007, the District Court denied what it had termed a second
motion for reconsideration. In its order, citing 28 U.S.C. § 2253, the District Court
explained to Board that he did not have to seek the District Court’s permission to file an
appeal with us.
In June and July, Board sought forms from our Clerk’s Office, but he was advised
that he was not entitled to them until he filed a notice of appeal in the District Court. In
reply, on August 13, 2007, he sent a copy of the District Court’s order in which the
District Court directed him to appeal, if he wished to, pursuant to 28 U.S.C. § 2253. He
also attached what he had submitted to the District Court on May 4, 2007, and expressed
his confusion about how he could perfect the filing of his appeal. Our Clerk’s Office
forwarded the filing to the District Court, noting that it should be construed as a notice of
appeal. On August 13, 2007, the District Court docketed the notice of appeal.
Before we consider the merits of this appeal, we must consider its scope. We have
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jurisdiction only over those orders for which Board timely filed a notice of appeal. See
Bowles v. Russell, 127 S. Ct. 2360, 2363-66 (2007). A notice of appeal in a civil case in
which the Government is a party must be filed within 60 days of the entry of the order
appealed from. See Fed. R. App. P. 4(a)(1)(B). If a litigant files a motion for
reconsideration, the time to appeal runs from the entry of the order resolving that motion.
See Fed. R. App. P. 4(a)(4)(A). Also, if a party files a notice of appeal after a court enters
a judgment but before ruling on a pending motion for reconsideration or a similar motion,
the notice becomes effective when the court enters an order disposing of the last
remaining motion for reconsideration (or similar motion). See Fed. R. App. P.
4(a)(4)(B)(i). A party who wishes to challenge an order denying a motion for
reconsideration must file an additional notice of appeal or amend a previously-filed notice
of appeal. See Fed. R. App. P. 4(a)(4)(B)(ii).
If we view the submission ultimately filed in the District Court as the notice of a
appeal on August 13, 2007, as Board’s notice of appeal, then we can only consider the
District Court’s order of July 13, 2007. However, upon review of the documents Board
filed on May 4, 2007, and his attempt to submit those documents on June 21, 2007, we
conclude that Board evinced an intention to appeal early enough to secure our review of
the District Court’s March order dismissing his § 2241 petition. We also conclude that he
renewed his intention to appeal in such a time and manner as to put an appeal of the June
13, 2007 order before us, too.
4
The filing requirements of Federal Rule of Appellate Procedure 3(c) are liberally
construed. See Smith v. Barry, 502 U.S. 244, 248 (1992). Although Board framed his
notice of appeal in letter form, he expressed his intention to appeal to the “Court of
Appeals for the thrid [sic] Circuit” from the District Court’s order, which was readily
identifiable from the context (including quotes from the District Court’s accompanying
memorandum). Also, in his certificate of service, he described his submission as a notice
of appeal. Accordingly, we conclude that he satisfied the requirements for filing a notice
of appeal on May 4, 2007. See United States v. Carson, 969 F.2d 1480, 1486 (3d Cir.
1992); see also Fed. R. App. P. 3(c); L.A.R. 3.4. The notice of appeal of the order of
March 9, 2007, became effective when the District Court ruled on June 13, 2007, on the
motion for reconsideration that Board had timely filed, see Fed. R. App. P. 59, on March
16, 2007. See Fed. R. App. P. 4(a)(4)(A) & (B). Board’s renewed submission on June
21, 2007, of the May 4, 2007 notice of appeal with additional argument about the District
Court’s decision to deny the motion for reconsideration on June 13, 2007, expanded the
scope of the appeal to include the June 13, 2007 order, too. Therefore, we do not dismiss
the appeal for lack of jurisdiction.
Upon consideration of the merits of this appeal, we will summarily affirm the
judgment of the District Court because no substantial issue is presented on appeal.
See L.A.R. 27.4; I.O.P. 10.6. The District Court was without jurisdiction to consider
Board’s claims under 28 U.S.C. § 2241. As the District Court concluded, Board cannot
5
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 ¶ 5.
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 Board, who has previously filed a § 2555 motion
and unsuccessfully sought permission to file another, is unable to meet its stringent
gatekeeping requirements. See id.
Board does not make a claim that fits under the In re Dorsainvil exception. He
essentially claimed that he could not be sentenced as a habitual offender because his
indictment did not describe the specific firearm used in robberies he committed, as he
maintains it must pursuant to the 1998 amendments to § 924(c)(1) and Castillo v. United
States, 530 U.S. 120, 131 (2000). His claim pertains to the integrity of his sentence, not
to the criminality of his conduct, so he could not bring it under § 2241.
In sum, for the reasons given, the District Court properly dismissed Board’s § 2241
petition and denied his motions for reconsideration. Accordingly, we will summarily
affirm the judgment of the District Court.
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