2009 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

9-17-2009

USA v. Ray Colburn

Precedential or Non-Precedential: Non-Precedential

Docket No. 09-2429

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Recommended Citation

"USA v. Ray Colburn" (2009). 2009 Decisions. Paper 642.

http://digitalcommons.law.villanova.edu/thirdcircuit_2009/642
1

HLD-142 (August 2009) NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

NO. 09-2429

___________

UNITED STATES OF AMERICA

v.

RAY DEAN COLBURN,

Appellant

____________________________________

On Appeal From the United States District Court

For the Middle District of Pennsylvania

(W.D. Pa. Crim. No. 06-cr-00482)

District Judge: John E. Jones, III

_______________________________________

Submitted for Possible Summary Action Pursuant to 

Third Circuit LAR 27.4 and I.O.P. 10.6 and on Request for a 

Certificate of Appealability under 28 U.S.C. § 2253(c)(1)

August 31, 2009

Before: SCIRICA, Chief Judge, WEIS and GARTH, Circuit Judges

 (Filed: September 17, 2009) 

 

_________

 OPINION

_________

PER CURIAM.

Ray Dean Colburn, an inmate at Columbia County Prison, in Bloomsburg,
 A certificate of appealability is not required for this appeal. See 28 U.S.C. 1

§ 2253; see also United States v. Baptiste, 223 F.3d 188, 189 n.1 (3d Cir. 2000) (a

certificate of appealability is not required by statute, rule, or case law to appeal from a

denial of a writ of error coram nobis under 28 U.S.C. § 1651(a)). 

2

Pennsylvania, appeals pro se from the District Court’s dismissal of his petition for a writ

of habeas corpus. Because we conclude that this appeal presents no substantial question,

we will summarily affirm. See 3d Cir. L.A.R. 27.4; I.O.P. 10.6.

On July 16, 2007, Colburn entered a plea of guilty to conspiracy to

distribute a controlled substance. In April 2008, while awaiting sentencing, Colburn filed

this federal habeas petition pro se, claiming a violation of due process, a violation of

Federal Rule of Criminal Procedure 5, and ineffective assistance of counsel. The District

Court determined that, whether filed pursuant to 28 U.S.C. § 2255 or § 2241, the petition

was premature, and dismissed the petition without prejudice. The District Court also

noted that Colburn had ignored its emphatic instructions that all claims must be filed

through his attorney, and directed the Clerk of the District Court not to docket any further

pro se filings in this matter while Colburn is represented by counsel. 

Colburn timely appealed. We have jurisdiction over the appeal under 28 U.S.C. §

1291 and § 2253(a), and we exercise plenary review over the District Court’s order. See 1

Okereke v. United States, 307 F.3d 117, 119 (3d Cir. 2002). 

 Colburn did not specify whether he filed his petition pursuant to § 2255 or § 2241. 
 28 U.S.C. § 2255(a) applies to “[a] prisoner in custody under sentence of 2

a court established by Act of Congress....” 

 3

Because Colburn has not yet been sentenced, § 2255 does not apply. Relief is available 2

under § 2241 “only where the petitioner demonstrates that some limitation of scope or

procedure would prevent a § 2255 proceeding from affording him a full hearing and

adjudication of his wrongful detention claim.” Cradle v. United States ex rel. Miner, 290

F.3d 536, 538 (3d Cir. 2002). As the District Court explains, once he is sentenced,

Colburn may pursue his claims first on direct appeal and then through a petition for a writ

of habeas corpus under § 2255. 

We agree with the District Court that Colburn’s petition, filed before he was

sentenced, is premature. Under United States v. Vampire Nation, 451 F.3d 189, 206 (3d

Cir. 2006), the District Court acted within its authority when it precluded Colburn from

filing pro se motions in this matter while represented by counsel. We conclude that the

appeal presents no substantial question. Accordingly, we will summarily affirm the

District Court’s judgment. See 3d Cir. L.A.R. 27.4; 3d Cir. I.O.P. 10.6.