Filed: Jul. 17, 2007
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2007 Decisions States Court of Appeals for the Third Circuit 7-17-2007 Mpala v. Smith Precedential or Non-Precedential: Non-Precedential Docket No. 07-1442 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2007 Recommended Citation "Mpala v. Smith" (2007). 2007 Decisions. Paper 748. http://digitalcommons.law.villanova.edu/thirdcircuit_2007/748 This decision is brought to you for free and open access by the Opinions of the United Stat
Summary: Opinions of the United 2007 Decisions States Court of Appeals for the Third Circuit 7-17-2007 Mpala v. Smith Precedential or Non-Precedential: Non-Precedential Docket No. 07-1442 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2007 Recommended Citation "Mpala v. Smith" (2007). 2007 Decisions. Paper 748. http://digitalcommons.law.villanova.edu/thirdcircuit_2007/748 This decision is brought to you for free and open access by the Opinions of the United State..
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Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
7-17-2007
Mpala v. Smith
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-1442
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2007
Recommended Citation
"Mpala v. Smith" (2007). 2007 Decisions. Paper 748.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/748
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2007 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
DLD-265 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
________________
No. 07-1442
________________
ZEEWE DAKAR MPALA,
Appellant
v.
JOSEPH SMITH, Warden
____________________________________
On Appeal From the United States District Court
For the Middle District of Pennsylvania
(D.C. Civ. No. 06-cv-00841)
District Judge: Honorable Edwin M. Kosik
____________________________________
Submitted For Possible Dismissal Due to Untimeliness or Summary Action
Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
June 14, 2007
Before: BARRY, AMBRO and FISHER, Circuit Judges.
(Filed: July 17, 2007)
_________________
OPINION
_________________
PER CURIAM
Appellant, Zeewe Dakar Mpala, appeals the order of the United States District
Court for the Middle District of Pennsylvania dismissing his petition for writ of habeas
corpus filed pursuant to 28 U.S.C. § 2241, and its subsequent order denying his motion
seeking reconsideration pursuant to Fed. R. Civ. P. 59(e). In response to this Court’s
listing of the appeal for possible summary action, appellee responded with a motion
seeking to have the District Court’s judgment summarily affirmed. Mpala opposes that
request. Because we conclude that Mpala’s appeal presents no substantial question, we
will summarily affirm.
Because the parties are familiar with the underlying facts, we only recount those
necessary to disposition of this appeal. In July 1998, Mpala1 was convicted of bank
robbery and unlawful possession of a firearm by a convicted felon following a bench trial
in the United States District Court for the District of Connecticut. Mpala unsuccessfully
sought pre-sentencing relief through the filing of a petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2241 and a motion for relief under 28 U.S.C. § 2255. In June
1999, Mpala was sentenced to concurrent sentences of 137 months for the bank robbery
conviction and 120 months for the firearm conviction, to be followed by three years of
supervised release. The Second Circuit Court of Appeals affirmed the judgment of the
District Court on June 14, 2002, United States v. Impala, 36 Fed. Appx. 476 (2nd Cir.
2002), and the Supreme Court denied Mpala’s petition for writ of certiorari on
January 27, 2003. Impala v. United States, 537 U.S. 1177 (2003). Mpala’s current
projected release date with application of his good time credits is February 29, 2008.
In April of 2006, Mpala, who is currently incarcerated at the United States
1
It appears that appellant is also known as David Gethers, Zeewe Dakar Impala
and Zizwe Dakar Impala.
2
Penitentiary in Lewisburg, Pennsylvania, filed a 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. Mpala asserted the following claims: (1) his 1999 concurrent sentences
have been miscalculated; (2) he is being denied access to the courts and legal aides; (3)
the Second Circuit Court of Appeals lacked jurisdiction to decide his appeal; and (4) the
remedy of 28 U.S.C. § 2255 is inadequate and ineffective to challenge his convictions and
sentences because the limitations period has expired.
The District Court dismissed Mpala’s petition in an Order entered on May 25,
2006. In the Memorandum Opinion accompanying that Order, the District Court
determined that, to the extent Mpala was challenging his District of Connecticut
convictions and resulting concurrent sentences, appellant’s claims were the type that
should be brought in a § 2255 motion filed with the sentencing court. See In re
Dorsainvil, 119 F.3d 245, 251 (3d Cir. 1997). The court concluded that Mpala failed to
show how a § 2255 motion was inadequate or ineffective to test the legality of his
detention – especially since appellant could have raised those claims on direct appeal or
in a § 2255 motion. The District Court noted that § 2255 was not rendered inadequate to
test the legality of his detention simply because Mpala may now be barred from filing a
§ 2255 motion by the one year limitations period. See Okereke v. United States,
307 F.3d
117, 120 (3d Cir. 2002), citing Cradle v. United States,
290 F.3d 536, 538 (3d Cir. 2002).
With respect to his denial of access to the courts claims, the District Court
concluded that they were not properly pursued in a § 2241 petition as Mpala did not assert
3
those claims in an effort to seek release from custody or a decrease in the sentence
imposed. See Preiser v. Rodriguez, 411 U.S. 475, 494 (1973). Rather, those claims
challenge Mpala’s conditions of confinement and are properly brought in a civil rights
action.2 As such, the District Court determined that they were subject to dismissal
without prejudice on that basis. Moreover, the court concluded that Mpala’s denial of
access claims were subject to dismissal in any event because of his failure to exhaust
administrative remedies, as was his claim of sentence miscalculation. The record clearly
demonstrates that Mpala failed to follow the Bureau of Prisons’ multi-tier system of
review for either of these claims. See United States v. Wilson,
503 U.S. 329 (1992);
Moscato v. Federal Bureau of Prisons,
98 F.3d 757 (3d Cir. 1996). Accordingly, the
District Court dismissed Mpala’s § 2241 petition. The District Court likewise denied
Mpala’s motion for reconsideration filed pursuant to Fed. R. Civ. P. 59(e). This appeal
followed.
We have appellate jurisdiction pursuant to 28 U.S.C. § 1291. Initially, we find that
Mpala has filed a timely notice of appeal. As previously stated, the District Court
dismissed Mpala’s § 2241 petition in an Order entered on May 25, 2006. Mpala had ten
(10) days to file a timely motion for reconsideration. Excluding Saturdays, Sundays and
the Memorial Day holiday, Mpala’s motion for reconsideration – which contained a
2
More specifically, given Mpala’s status as a federal inmate, such claims would be
pursued in an action filed pursuant to Bivens v. Six Unknown Named Agents of Fed.
Bureau of Narcotics, 403 U.S. 388 (1971).
4
certificate of service date of June 5, 2006, and a postmark date of June 8, 2006 – was
timely. See Fed. R. Civ. P. 6(a); see also Smith v. Evans, 853 F.2d 155, 161-62 (3d Cir.
1988) (concluding that a motion for reconsideration is deemed filed when prisoner
delivers it to prison authorities). Therefore, the sixty-day period for Mpala to appeal
began to run following entry of the District Court’s Order dismissing his Rule 59(e)
motion on January 16, 2007. See Fed. R. App. P. 4(a)(4)(A). Mpala’s notice of appeal,
filed on February 12, 2007, was thus timely.
Our review of the District Court’s decision to dismiss Mpala’s § 2241 petition is
de novo, see United States v. Cleary, 46 F.3d 307, 309-310 (3d Cir.1995), and we review
the District Court’s order denying his motion filed under Rule 59(e) for an abuse of
discretion. See Max’s Seafood Café v. Quinteros,
176 F.3d 669, 673 (3d Cir. 1999).
Having carefully reviewed the record and the parties’ submissions, we will grant
appellee’s motion and summarily affirm the District Court’s judgment because it clearly
appears that no substantial question is presented by this appeal. We would simply state
that, with respect to Mpala’s “actual innocence” claim, the District Court committed no
abuse of discretion in concluding that such claim should have been asserted in the initial
petition and not as a basis for a reconsideration motion. Additionally, it appears to us that
this claim is merely a disguised challenge to the sufficiency of the evidence presented at
trial, and certainly not one of the grounds warranting reconsideration. See Max’s Seafood
Café, 176 F.3d at 677. Because there is little else that we could add to the reasoning set
forth in the District Court’s Memorandum Opinion and Orders, further written discussion
5
is not warranted.
The District Court’s judgment is summarily affirmed. See Third Circuit LAR 27.4
and I.O.P. 10.6.
6
