United States District Court, D. Maryland
THEODORE D. CHUANG UNITED STATES DISTRICT JUDGE
James Kirby Burks, Jr., an inmate at the Federal Correctional
Institution in Cumberland, Maryland (FCI-Cumberland), has
filed a Petition for a Writ of Habeas Corpus pursuant to 28
U.S.C. § 2241 in which he seeks his immediate release,
as well as a Motion to Expedite the resolution of his
Petition. He has also filed a Motion for Grant of Release on
Personal Recognizance, in which he seeks release pending
resolution of the Petition. For the reasons set forth below
the Petition is DISMISSED, and the Motions are DENIED.
1994, Burks was convicted after a jury trial in the United
States District Court for the Eastern District of Virginia of
conspiracy to distribute and possess with the intent to
distribute more than 50 grams of cocaine base (crack
cocaine), in violation of 21 U.S.C. § 846 and 21 U.S.C.
§ 841(a)(1) and (b)(1)(A)(iii), and for engaging in a
continuing criminal enterprise ("CCE") in which he
supervised five or more persons, in violation of 21 U.S.C.
§ 848. On June 3, 1994, the Court imposed two concurrent
life sentences, which were within the applicable guideline
range under the United States Sentencing Guidelines.
direct appeal, Burks asserted that his convictions were
multiplicitous because the conspiracy and overt acts alleged
were the predicate offenses used to support the CCE charge.
The United States Court of Appeals for the Fourth Circuit
agreed, vacated the conspiracy conviction, and remanded the
case to the district court with instructions to dismiss that
conviction. United States v. Burks, 85 F.3d 617,
1996 WL 228806, at *1 (4th Cir. Apr. 29, 1996) (unpublished).
However, the Fourth Circuit affirmed the CCE conviction.
Because the life sentence imposed on that charge was itself
within the applicable guidelines range, the court declined to
order that Burks be re-sentenced. The United States Supreme
Court denied Burks's petition for a writ of certiorari.
Burks v. United States, 85 U.S. 617 (1996).
1997, Burks filed a Motion to Vacate, Set Aside, or Correct
the Sentence under 28 U.S.C. § 2255, which was denied by
the district court. On January 28, 1998, the Fourth Circuit
denied a certificate of appealability and dismissed
Burks's appeal of the denial of his § 2255 motion.
United States v. Burks, 134 F.3d 364, 1998 WL 29510,
at *1 (4th Cir. Jan. 28, 1998) (unpublished).
prisoner may file a petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2241 in order to challenge the
calculation or execution of the sentence. In re
Vial, 115 F.3d 1192, 1194 n.5 (4th Cir. 1997) (en banc).
Burks claims that he is challenging the execution of his
sentence based on his allegation that his sentence was
supposed to expire on May 22, 2017, yet he remains in
custody. However, a review of his Petition reveals that his
arguments are based entirely on his claims that his
conviction and sentence were invalid, including that certain
sentencing enhancements were improperly applied, such that
his life sentence exceeded the applicable guideline range.
Thus, Burks is essentially attacking the validity of his
underlying sentence, not its execution. See Castro v.
United States, 540 U.S. 375, 381 (2003) (recognizing
that courts may recharacterize the legal label a pro se
litigant attaches to a motion "to create a better
correspondence between the substance of a pro se
motion's claim and its underlying legal basis").
the legality of a federal prisoner's conviction and
sentence must be challenged under 28 U.S.C. §2255 unless
the remedy available through a § 2255 motion "is
inadequate or ineffective to test the legality of his
detention, " an exception referred to as the § 2255
"savings clause." 28 U.S.C. § 2255(e) (2012);
see In re Vial, 115 F.3d at 1194. In such a case, an
inmate may proceed under § 2241 to challenge his
conviction. In re Jones, 226 F.3d 328, 333 (4th Cir.
savings clause is applicable "in only very limited
circumstances." United States v. Poole, 531
F.3d 263, 269 (4th Cir. 2008) (citation omitted). "[T]he
remedy afforded by § 2255 is not rendered inadequate or
ineffective merely because an individual has been unable to
obtain relief under that provision or because an individual
is procedurally barred from filing a § 2255
motion." In re Vial, 115 F.3d at 1194 n.5
(internal citations omitted). Rather, a § 2255 motion is
inadequate and ineffective to test the legality of a
(1) at the time of conviction, settled law of this circuit or
the Supreme Court established the legality of the conviction;
(2) subsequent to the prisoner's direct appeal and first
§ 2255 motion, the substantive law changed such that the
conduct of which the prisoner was convicted is deemed not to
be criminal; and (3) the prisoner cannot satisfy the
gatekeeping provisions of § 2255 because the new rule is
not one of constitutional law.
In re Jones, 226 F.3d at 333-34. Thus, the
applicability of the § 2255 savings clause is
"confined to instances of actual innocence of the
underlying offense of conviction, " not the
inapplicability of a sentencing factor. Darden v.
Stephens, 426 Fed.Appx. 173, 174 (4th Cir. 2011)
(refusing to extend the savings clause to reach a
petitioner's claim that he was "innocent" of
being classified as a career offender under the Sentencing
Guidelines). "Fourth Circuit precedent has likewise not
extended the reach of the savings clause to those petitioners
challenging only their sentence." See Poole,
531 F.3d at 267 n.7. Otherwise, the statutory limit on second
and successive § 2255 motions would be meaningless.
See 28 U.S.C. § 2255(h).
Burks seeks habeas relief under § 2241 by way of the
savings clause because he has previously filed a § 2255
motion. His Petition alleges that his sentence violates the
Double Jeopardy Clause of the Fifth Amendment, that he was
improperly assigned a four-level increase in his offense
level, which resulted in a guideline range of life
imprisonment, and that as a result, the Warden of
FCI-Cumberland is "guilty of false imprisonment and
violations of Petitioner's Fifth Amendment right to due
process due to the execution of an unconstitutional
judgment." Pet. at 22, ECF No. 1-1. Burks does not
establish that his Petition meets the criteria set forth in
Jones that would justify a § 2241 petition. His
citations of Apprendi v. New Jersey, 530 U.S. 466
(2000), and Alleyne v. United States, 570 U.S. 99
(2013), which addressed the proof requirement for facts that
increase the statutory maximum penalty, Apprendi,
530 U.S. at 490; Alleyne, 570 U.S. at 116, are
unpersuasive because none of the sentencing enhancements
referenced in the Petition, or the facts underlying those
enhancements, increased the statutory maximum or minimum
sentences. See 21 U.S.C. § 848(a) (setting the
maximum sentence as life imprisonment). Accordingly, he may
not challenge his conviction and sentence through a §
2241 petition. The Court will therefore dismiss the Petition.
As a result, the Motion to Expedite and the Motion for Grant
of Release on Personal Recognizance are now moot and thus
will be denied.
certificate of appealability may issue if the prisoner has
made a "substantial showing of the denial of a
constitutional right." 28 U.S.C. § 2253(c)(2). When
a petition is denied on procedural grounds, the petitioner
meets the standard with a showing that reasonable jurists
"would find it debatable whether the petition states a
valid claim of the denial of a constitutional right" and
"whether the district court was correct in its
procedural ruling." Slack v. McDaniel, 529 U.S.
473, 484 (2000). Here, the Court finds that Burks has not
made the requisite showing. The Court therefore declines to
issue a certificate of appealability. Burks may still request
that the United States Court of Appeals for the Fourth
Circuit issue such a ...