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GLD-067 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 11-2172

___________

BARKLEY GARDNER,

 Appellant

v.

WARDEN TROY WILLIAMSON;

U.S. BUREAU OF PRISONS

(3-07-cv-01788)

BARKLEY GARDNER,

 Appellant

v.

WARDEN B.A. BLEDSOE; U.S.P. LEWISBURG;

UNITED STATES OF AMERICA BUREAU OF PRISONS (“BOP”)

(3-10-cv-00717)

____________________________________

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. Civil Nos. 3-07-cv-01788 and 3-10-cv-00717)

District Judge: Honorable James M. Munley

____________________________________

Submitted for Possible Summary Action 

Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6

December 15, 2011

Before: FUENTES, GREENAWAY, JR. and STAPLETON, Circuit Judges
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(Opinion filed: January 19, 2012)

_________

OPINION

_________

PER CURIAM

In 2007, in the U.S. District Court for the Middle District of Pennsylvania, 

Barkley Gardner filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241, 

arguing that the Bureau of Prisons (“BOP”) exceeded its authority in setting his 

restitution schedule through the Inmate Financial Responsibility Program. The District 

Court transferred the § 2241 petition, docketed at M.D. Pa. 07-cv-01788, on convenience 

grounds to the U.S. District Court for the Eastern District of North Carolina, where 

Gardner had been sentenced. The North Carolina District Court denied the § 2241 

petition. In its opinion, the North Carolina District Court explicitly noted that it was 

treating the petition as a § 2241 petition although the petition had been initially docketed

on transfer as a motion pursuant to 28 U.S.C. § 2255. Gardner v. Williamson, slip op. 1 

n.1 (E.D. N.C. May 13, 2008, Civ. No. 08-cv-02050-H). The Court of Appeals for the 

Fourth Circuit affirmed the decision.

In 2010, Gardner filed another § 2241 petition in the District Court for the Middle 

District of Pennsylvania. He attacked the sentencing court’s restitution order. The 

District Court dismissed the petition as successive under 28 U.S.C. § 2244(a) and as an 

abuse of the writ, concluding that Gardner had raised the claim in the earlier § 2241 

petition that had been denied on its merits by the North Carolina District Court. We 
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affirmed the District Court’s order on an alternative basis, explaining that the District 

Court lacked jurisdiction to consider the claim under § 2241 because it challenged the 

sentencing court’s restitution order, not the BOP’s execution of it. Gardner v. Bledsoe, 

415 F. App’x 384, 386 (3d Cir. 2011) (citing McGee v. Martinez, 627 F.3d 933, 936-37 

(3d Cir. 2010)). 

In March 2011, in both cases in the Middle District of Pennsylvania,1

As a preliminary matter, we grant Gardner’s motion to proceed in forma pauperis. 

We have jurisdiction over his appeal pursuant to 28 U.S.C. § 1291. We review the order 

denying his Rule 60(b) motion for abuse of discretion. See Brown v. Phila. Hous. Auth., 

350 F.3d 338, 342 (3d Cir. 2003). Upon review, we will summarily affirm the District 

Gardner 

filed a “motion for relief from judgment pursuant to Fed. Rules Civ. Proc., Rule 60(b)(4), 

(5), and (6).” Essentially, he argued that the District Court erred in recharacterizing the 

§ 2241 petition he filed in 2007 as a § 2255 motion when it transferred it to the North

Carolina District Court. He asked that his § 2241 motion be reinstated and ruled on by 

the District Court in the Middle District of Pennsylvania. In a single memorandum and 

order, the District Court denied his cross-filed motion, noting that it had not 

recharacterized the petition (and also noting that it had authorization to transfer the § 

2241 petition to the District Court for the Eastern District of North Carolina). Gardner 

filed a notice of appeal and seeks to appeal in forma pauperis.

 1 Although he listed the docket number for the case in the Eastern District of North 

Carolina on the motion, he did not file his motion in that case. 
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Court’s judgment because no substantial issue is presented on appeal. See 3d Cir. Local 

Rule 27.4; 3d Cir. I.O.P. 10.6. 

Contrary to Gardner’s assertions, the District Court did not recharacterize 

Gardner’s § 2241 petition. The District Court treated it and transferred it as a § 2241 

motion. It appears that at some point, the Clerk for the U.S. District Court for the Eastern 

District of North Carolina may have described or docketed Gardner’s petition on transfer 

as a § 2255 motion. However, the North Carolina District Court also treated the petition 

as a § 2241 motion. In short, Gardner did not present any basis for reopening his cases in 

the Middle District of Pennsylvania, and the District Court did not abuse its discretion in 

declining to reopen the actions. 

For these reasons, we will affirm the District Court’s ruling.2

 2 As we noted above, Gardner’s motion to proceed in forma pauperis on appeal is 

granted.