United States of America v. Shynnell Isaac Walker, a/k/a Shaw, a/k/a Shawnell Shynnell Isaac Walker

ALD-188 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 09-1179
___________
UNITED STATES OF AMERICA
v.
SHYNNELL ISAAC WALKER,
a/k/a Shaw, a/k/a Shawnell
Shynnell Isaac Walker,
Appellant
____________________________________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil Action No. 05-cr-00211-005)
District Judge: Honorable James F. McClure, Jr.
____________________________________
Submitted for Possible Dismissal For Lack of Jurisdiction
or Possible Summary Action Pursuant to
Third Circuit LAR 27.4 and I.O.P. 10.6(a)
May 14, 2009
Before: SLOVITER, FUENTES and JORDAN , Circuit Judges
(Opinion filed: June 1, 2009)
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OPINION
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PER CURIAM

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Appellant Shynell Walker, a pro se prisoner, appeals from the District Court’s
denial of his “Formal Motion to Review and Investigate Issues For Approate [sic]
disposition.” For the reasons set forth below, we will summarily affirm. See I.O.P. 10.6.
I.
On July 11, 2006, Walker pled guilty in the United States District Court for the
Middle District of Pennsylvania to possession and distribution of a controlled substance
in violation of 21 U.S.C. § 841(a)(1). On January 25, 2007, the Court sentenced Walker
to 70 months of imprisonment. On September 9, 2008, Walker filed a “Formal Motion to
Review and Investigate Issues For Approate [sic] disposition.” After reviewing the
motion, the Court denied it without prejudice, finding that such an action challenging his
sentence should be filed pursuant to 28 U.S.C. § 2255.
II.
We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. The District
Court's order was entered on September 2, 2008. Walker filed his notice of appeal on
January 13, 2009, well beyond the 60-day period prescribed by Fed. R. App. P.
4(a)(1)(B). The District Court's final order, however, was not accompanied by a separate
judgment as required; thus, the time for filing an appeal did not begin to run with the
issuance of that order. See Fed R. Civ. P. 58; see also See LeBoon v. Lancaster Jewish
Community Center Ass'n, 503 F.3d 217, 223 (3d Cir. 2007). An order is considered a
separate document only if (1) it is self-contained and separate from the opinion; (2) it

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We note that the filing of a § 2255 motion right now would be premature as Walker’s1
direct appeal remains pending. See Kapral v. United States, 166 F.3d 565, 570 (3d Cir.
1999).
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notes the relief granted; and (3) it omits (or at least substantially omits) the court's reasons
for disposing of the claims. See LeBoon, 503 F.3d at 224. The District Court's order
failed to satisfy the first and third criteria.
When a judgment is required to be set forth on a separate document, that judgment
is not treated as entered until it is set forth on a separate document or until the expiration
of 150 days after its entry in the civil docket under Fed. R. Civ. P. 79(a), whichever
occurs first. See Fed. R. App. P. 4(a)(7)(A)(ii). Accordingly, entry of judgment and
commencement of the 60-day period for filing a notice of appeal did not occur in this case
until 150 days after docketing of the District Court’s order, i.e., on February 6, 2009. See
LeBoon, 503 F.3d at 223. As such, Walker’s notice of appeal was timely and we have
jurisdiction over the appeal. Id. at. 225.
We exercise plenary review over the District Court's legal conclusions and apply a
clearly erroneous standard to its factual findings. See Cradle v. United States ex rel.
Miner, 290 F.3d 536, 538 (3d Cir. 2002). Upon review, we agree with the District Court
that Walker may raise his claims – which concern the legality of his indictment – only in
a § 2255 motion. A § 2255 motion is the presumptive means by which a federal prisoner
may challenge his conviction or sentence. See Davis v. United States, 417 U.S. 333,1
343-44 (1974). Walker has not shown that such a motion would be inadequate to address

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his claims.
As Walker's appeal presents no substantial question, we will summarily affirm.
See Third Cir. LAR 27.4; I.O.P. 10.6.

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