Cecil Jackson v. Sara Revell , 546 F. App'x 194 ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-6229
CECIL EDWARD JACKSON,
Petitioner - Appellant,
v.
SARA REVELL,
Respondent - Appellee.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle,
District Judge. (5:12-hc-02057-BO)
Submitted: October 29, 2013 Decided: November 12, 2013
Before NIEMEYER, GREGORY, and SHEDD, Circuit Judges.
Affirmed as modified by unpublished per curiam opinion.
Cecil Edward Jackson, Appellant Pro Se. Jennifer P. May-Parker,
Assistant United States Attorney, Shailika K. Shah, OFFICE OF
THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Cecil Edward Jackson, a federal prisoner, appeals the
district court’s order dismissing his 28 U.S.C.A. § 2241 (West
2006 & Supp. 2013) petition seeking relief under Bailey v.
United States, 516 U.S. 137 (1995), and Bousley v. United
States, 523 U.S. 614 (1998). After the district court provided
Jackson notice that it intended to characterize his petition as
a 28 U.S.C.A. § 2255 (West Supp. 2013) motion, see Castro v.
United States, 540 U.S. 375, 383 (2003) (requiring notice prior
to recharacterizing motion as motion to vacate), Jackson opposed
the recharacterization, arguing that he was entitled to proceed
with his § 2241 petition under In re Jones, 226 F.3d 328, 333
(4th Cir. 2000). In its final order, the court noted that,
while § 2241 may be a proper vehicle to assert a Bailey claim,
Jackson had an “unobstructed procedural shot” 1 at filing a § 2255
motion to take advantage of the change in law and, furthermore,
Jackson subsequently had received a sentence reduction, which
“reset the counter” on Jackson’s ability to file a § 2255
motion.
1
Rice v. Rivera, 617 F.3d 802, 807 (4th Cir. 2010) (“If [a]
prisoner had an unobstructed procedural shot at filing a § 2255
motion to take advantage of [certain changes in law], a § 2241
motion is unavailable to him . . . .”).
2
Unlike the majority of § 2241 petitioners seeking
relief under Jones, Jackson still has the opportunity to file
his first § 2255 motion. See Rice, 617 F.3d at 807 (“[U]nder
the Jones rule a federal prisoner is entitled to pursue a § 2241
motion only when he had no opportunity to utilize a § 2255
motion to take advantage of a change in the applicable law.”).
While Jackson correctly foresees that the limitations period may
preclude his claim, Ҥ 2255 is not inadequate or ineffective
merely because an individual is unable to obtain relief under
that provision.” Jones, 226 F.3d at 333. 2 While it is true that
this case has had a circuitous route to this point, Jackson had
many opportunities to clear the path. His failure to diligently
assert his rights bars his § 2241 claim. See Cephas v. Nash, 32
F.3d 98, 105 (2nd Cir. 2003) (holding that where “petitioner
invokes § 2241 jurisdiction to raise claims that clearly could
2
We do, however, clarify that the district court erred in
stating that the district court’s prior grant of a sentence
reduction pursuant to the crack cocaine amendment “reset the
counter,” allowing Jackson to then file a new § 2255 motion.
See United States v. Sanders, 247 F.3d 139, 143 (4th Cir. 2001)
(holding that Sanders’ Fed. R. Crim. P. 35(b) sentence
modification did not affect the date on which his judgment of
conviction became final and therefore did not restart the one-
year limitations period to file motion to vacate); see also
United States v. Dunphy, 551 F.3d 247, 251-52 (4th Cir. 2009)
(holding that “proceedings under [18 U.S.C.] § 3582(c)(2)
[(2006)] ‘do not constitute a full resentencing of the
defendant’”).
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have been pursued earlier . . . the savings clause of § 2255 is
not triggered and dismissal of the § 2241 petition for lack of
jurisdiction is warranted”).
For these reasons, although we grant leave to proceed
in forma pauperis, we affirm the dismissal of Jackson’s § 2241
petition as modified. We dispense with oral argument because
the facts and legal contentions are adequately presented in the
materials before this court and argument would not aid the
decisional process.
AFFIRMED AS MODIFIED
4