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Gardner v. Warden Lewisburg USP

United States Court of Appeals, Third Circuit

January 4, 2017

BARKLEY GARDNER, Appellant
v.
WARDEN LEWISBURG USP

          Submitted Under Third Circuit L.A.R. 34.1(a) September 19, 2016

         On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. No. 03-14-cv-00858)

          Edward J. Rymsza, III Miele & Rymsza, P.C. Counsel for Appellant

          Carlo D. Marchioli Kate L. Mershimer Office of United States Attorney Counsel for Appellee

          Before: MCKEE, [*] HARDIMAN, and RENDELL, Circuit Judges.

          OPINION OF THE COURT

          Honorable James M. Munley District Judge

         A federal prisoner who wishes to challenge the constitutionality of his incarceration may file a petition for writ of habeas corpus under 28 U.S.C. § 2255. In the exceptional circumstance when § 2255 is inadequate or ineffective to do so, however, a petition may be filed under the general habeas statute, 28 U.S.C. § 2241. In Okereke v. United States, 307 F.3d 117, 120 (3d Cir. 2002), we held that § 2255 was adequate and effective to adjudicate a claim of sentencing error under Apprendi v. New Jersey, 530 U.S. 466 (2000). The question this appeal presents is whether § 2255 is an adequate and effective means to adjudicate a claim of sentencing error under Alleyne v. United States, 133 S.Ct. 2151 (2013). We hold that it is.

         I

         In 1996, Appellant Barkley Gardner and four others were convicted on charges related to their involvement in a drug conspiracy that operated in New York, Maryland, and North Carolina. See United States v. Celestine, 43 F.App'x 586, 589 (4th Cir. 2002) (affirming Gardner's convictions). Members of the conspiracy murdered a rival drug dealer, Lateisha Beaman, by carjacking and kidnapping her, taking her into the woods, and shooting her. Id. They also murdered another defendant's former girlfriend, Roneka Jackson, after she tried to report their illegal activity. See id. at 589-90.

         A jury in North Carolina convicted Gardner of seven federal crimes: (1) racketeering; (2) racketeering conspiracy; (3) conspiracy to distribute a controlled substance; (4) conspiracy to commit murder; (5) murder in aid of racketeering, aiding and abetting; (6) carjacking resulting in death; and (7) using and carrying a firearm during and in relation to a crime of violence causing death, aiding and abetting. Gardner was sentenced to imprisonment for "his natural life on each of Counts 1, 2, 3, 5, 6 and 7, and 120 months [on] Count 4, all to be served concurrently, " and a special assessment totaling $350. App. 111A-12A.

         The Court of Appeals for the Fourth Circuit affirmed Gardner's convictions. Celestine, 43 F.App'x at 598, cert. denied, Gardner v. United States, 537 U.S. 1095 (2002). After his direct appeal became final, Gardner filed a motion in the United States District Court for the Eastern District of North Carolina under 28 U.S.C. § 2255 seeking to vacate or modify his sentence based on ineffective assistance of counsel. The district court denied Gardner's motion, and the Fourth Circuit again affirmed. United States v. Gardner, 231 F.App'x 284 (4th Cir. 2007).

         In May 2014, Gardner filed a petition for writ of habeas corpus under 28 U.S.C. § 2241 in the Middle District of Pennsylvania-where he remains incarcerated-claiming he is being held in violation of the United States Constitution in light of the Supreme Court's intervening decisions in Alleyne, Burrage v. United States, 134 S.Ct. 881 (2014), and Rosemond v. United States, 134 S.Ct. 1240 (2014). In Alleyne, the Supreme Court mirrored its opinion in Apprendi, and held that "[a]ny fact that, by law, increases the [mandatory minimum] penalty for a crime is an 'element' that must be submitted to the jury and found beyond a reasonable doubt." Alleyne, 133 S.Ct. at 2155 (citation omitted). Burrage confirmed this rule by applying it to a specific penalty enhancement. 134 S.Ct. at 887. And Rosemond changed the standard for aiding and abetting under 18 U.S.C. § 924(c). 134 S.Ct. at 1243.

         On July 7, 2014, the Magistrate Judge recommended dismissing Gardner's § 2241 petition for lack of jurisdiction because Gardner's claims should have been raised in a § 2255 motion filed in the court that sentenced him: the United States District Court for the Eastern District of North Carolina. Two months later, the District Court adopted the Magistrate Judge's report and recommendation denying Gardner's § 2241 petition, dismissing his claims under Alleyne on jurisdictional grounds. Gardner argued that because facts that increased his mandatory minimum penalty were not found by the jury beyond a reasonable doubt, "Alleyne invalidates his concurrent life sentences." Gardner v. Thomas, 2014 WL 4351534, at *3 (M.D. Pa. Sept. 2, 2014). The District Court held that it lacked jurisdiction to decide this claim because "the presumptive means for federal prisoners to challenge their convictions or sentences is a section 2255 motion, not a section 2241 petition, " and "a section 2241 petition is limited to circumstances where the remedy available under section 2255 is inadequate or ineffective to test the legality of detention." Id. at *2 (citing 28 U.S.C. § 2255(e) and Okereke, 307 F.3d at 120). Noting that Alleyne simply mirrored the rule announced in Apprendi, ...


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