2013 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

1-31-2013

USA v. Richard Ballard

Precedential or Non-Precedential: Non-Precedential

Docket No. 12-2358

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Recommended Citation

"USA v. Richard Ballard" (2013). 2013 Decisions. Paper 1293.

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GLD-076 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 12-2358

___________

UNITED STATES OF AMERICA

v.

RICHARD BALLARD,

Appellant

____________________________________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Crim. No. 03-cr-00810-001)

District Judge: Honorable Jan E. Dubois

____________________________________

Submitted for a Decision on Issuance of a Certificate of Appealability and

for Possible Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6

December 13, 2012

Before: FUENTES, FISHER and ROTH, Circuit Judges

(Opinion filed: January 31, 2013)

_________

OPINION

_________

PER CURIAM

Richard Ballard pleaded guilty to federal controlled substance and weapons 

charges and the District Court imposed consecutive sentences of 180 months of 

imprisonment. His plea agreement contained a waiver of appellate and collateral 
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challenge rights. He nevertheless appealed, and we affirmed his convictions and sentence 

on the basis of the waiver. See United States v. Ballard, 245 F. App’x 137, 140 (3d Cir. 

2007). Ballard also challenged his sentence by filing a motion under 28 U.S.C. § 2255, 

which the District Court denied. Ballard did not seek a certificate of appealability.

Ballard later filed the motion at issue here, which he captioned as a “motion 

pursuant to Rule 60(b)(6) . . . or in the alternative . . . under F.R. Crim. P. 32(c)(3)(d).” 

Ballard claimed that his Presentence Report (“PSR”) inaccurately states that he was 

involved in a 2003 shooting. He further claimed that the alleged inaccuracy “is having a 

direct adverse impact on decisions made by the prison officials here at [FDCAllenwood], with respect to Petitioner’s security level, institutional placement, halfway 

house consideration and camp placement.” The sole relief he sought was an order 

amending the PSR to delete the alleged inaccuracies.

The District Court denied the motion for three reasons. First, the court concluded 

that the motion is barred by Ballard’s appellate/collateral challenge waiver. Second the 

court held that relief was not available under § 2255 or Rule 60(b). Finally, the court 

concluded that Ballard was not entitled to relief on the merits because, among other 

things, the statements at issue were properly included in his PSR under Rule 32 of the 

Federal Rules of Criminal Procedure. Ballard appeals pro se.

“This Court has an obligation to inquire sua sponte . . . into the jurisdiction of the 

District Court to enter the order on appeal.” United States v. Higgs, 504 F.3d 456, 457 

(3d Cir. 2007). Although we appreciate the District Court’s thorough treatment of 

Ballard’s pro se motion, we conclude that jurisdiction was lacking in this case. We agree 
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with the District Court that Ballard does not seek relief available under § 2255 or Rule 

60(b) because he expressly stated that he is not challenging his conviction or sentence

and instead requested only the amendment of his PSR. The District Court lacked 

jurisdiction to provide that relief under Rule 32, however, because sentencing courts do 

not retain jurisdiction thereunder to entertain challenges to the PSR after final judgment. 

See United States v. Anguilo, 57 F.3d 38, 41 (1st Cir. 1995) (collecting cases); United 

States v. Warner, 23 F.3d 287, 290 (10th Cir. 1994) (same).

In reaching the merits, the District Court noted one of our non-precedential 

decisions in which we assumed without deciding that a claim similar to Ballard’s could 

be brought in a habeas petition under 28 U.S.C. § 2241. Section 2241 may indeed 

provide Ballard with an avenue for relief. Although the specific relief he requested was 

amendment of his PSR, the only injuries he alleged were the Bureau of Prisons (“BOP”) 

decisions about his “security level, institutional placement, halfway house consideration 

and camp placement” that he claims were based on the existing PSR. Ballard’s motion 

does not provide sufficient detail to determine whether those unspecified decisions 

constitute the execution of his sentence. See Cardona v. Bledsoe, 681 F.3d 533, 535-37 

& n.5 (3d Cir. 2012). If they do, then he may challenge them in a § 2241 habeas petition. 

See United States v. Saeteurn, 504 F.3d 1175, 1180 & n.12 (9th Cir. 2007) (addressing 

similar challenge); United States v. Leath, 711 F.2d 119, 120 (8th Cir. 1983) (same). A § 

2241 petition must be filed in the district of confinement, however, which is the only 

district with jurisdiction to hear the challenge. See Burkey v. Marberry, 556 F.3d 142,

146 (3d Cir. 2009); United States v. Ferri, 686 F.2d 147, 158-59 (3d Cir. 1982). If those 
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decisions do not constitute the execution of his sentence, then Ballard may be able to 

challenge them under Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971),

though we express no opinion on that issue. See Cardona, 681 F.3d at 537 n.9. The 

District Court might have had subject matter jurisdiction over a properly filed Bivens

action, but there is no basis for the relief Ballard seeks in a post-judgment motion in the 

sentencing court.

For these reasons, we will vacate the District Court’s order and remand for the 

District Court to dismiss Ballard’s motion for lack of jurisdiction. That dismissal will be 

without prejudice to Ballard’s ability to file a § 2241 petition or other appropriate 

pleading in the district of his confinement, which presently is the Middle District of 

Pennsylvania, after exhausting such administrative remedies with the BOP as may be 

available to him. See Saeteurn, 504 F.3d at 1180 & n.12. We express no opinion on the 

substance of the District Court’s analysis or on the merits of any § 2241 petition or other 

pleading that Ballard may file in the future.1

 

1 Because Ballard’s motion is not properly characterized as a § 2255 motion or a § 2255-

related Rule 60(b) motion, no certificate of appealability is required for this appeal and 

we have jurisdiction under 28 U.S.C. § 1291. See Burkey, 556 F.3d at 146.