Kennedy v. Warden Allenwood , 239 F. App'x 718 ( 2007 )

Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
5-23-2007
Kennedy v. Warden Allenwood
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-1794
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Recommended Citation
"Kennedy v. Warden Allenwood" (2007). 2007 Decisions. Paper 1071.
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ALD-216 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 07-1794
________________
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-1208)
District Judge: Honorable Yvette Kane
_______________________________________
Submitted For Possible Dismissal Due to Lack of Timely Filing,
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
May 3, 2007
Before: SLOVITER, CHAGARES AND GREENBERG, CIRCUIT JUDGES
(Filed May 23, 2007)
_______________________
OPINION
_______________________
PER CURIAM
Jimmie Lee Kennedy was convicted by jury in the United States District Court for
the District of Columbia for robbery and weapons offenses. When he filed his second
petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 in the United States
District Court for the Middle District of Pennsylvania, he was serving his sentence at
FCI-Allenwood.1
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
1
Without applying to this Court for permission to do so, the Bureau of Prisons recently
transferred Kennedy to a federal prison in Indiana. Nonetheless, we retain jurisdiction
over this appeal. See Goodman v. Keohane, 663 F.2d 1044, 1047 (11th Cir. 1981)
(holding that transfers in violation of Rule 23 of the Federal Rules of Appellate Procedure
do not divest a reviewing court of jurisdiction); cf. Rumsfeld v. Padilla, 542 U.S. 426,
441 (2004); Ex parte Endo, 323 U.S. 283, 307 (1944)).
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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
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 an 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
3
“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
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.
We subsequently considered Kennedy’s appeal and summarily affirmed the
District Court’s October 26, 2006 order dismissing Kennedy’s petition. See Kennedy v.
Warden, USP Allenwood, C.A. No. 06-3786 (3d Cir. Feb. 16, 2007) (non-precedential
opinion). Briefly stated, the District Court was without jurisdiction to consider
Kennedy’s claims under 28 U.S.C. § 2241. Kennedy could not proceed under § 2241
because a motion to challenge his conviction and sentence pursuant to 28 U.S.C. § 2255was not “inadequate or ineffective.” 28 U.S.C. § 2255.
After we ruled on Kennedy’s appeal of the October 26, 2006 order, Kennedy
timely filed this appeal of the January 18, 2007 order denying his motion for
4
reconsideration. The Government asks that we summarily dismiss this appeal, contending
that we have already affirmed the order at issue. We did not previously consider the
January 18, 2007 order. See Fed. R. App. P. 4(B)(ii). Accordingly, we deny the
Government’s motion.
Nonetheless, we will dismiss Kennedy’s appeal pursuant to 28 U.S.C.
§ 1915(e)(2)(B)(i). Kennedy’s appeal is without merit in fact or law. Not only did he
present no basis for reconsideration of the District Court’s October 26, 2006 order, but he
also filed his appeal of the order denying the motion for reconsideration after we had
explained to him why the October 26, 2006 order was correct.
5