Opinion
Case No. CIV-06-655-C.
June 30, 2006
REPORT AND RECOMMENDATION ON PRELIMINARY REVIEW OF THE HABEAS PETITION
The Petitioner seeks habeas relief under 28 U.S.C. § 2241, and the Court has referred the action to the undersigned for preliminary review and findings and recommendations on dispositive matters. The undersigned recommends summary dismissal of the petition.
Emergency Petition for a Writ of Habeas Corpus, 28 U.S.C. § 2241 (June 16, 2006) ("Petition").
Preliminary review of a petition is necessary when an action arises under 28 U.S.C. § 2254. See Rule 4, Rules Governing Section 2254 Cases in the United States District Courts. Mr. Banks has invoked Section 2241, rather than Section 2254. However, the same preliminary review can be conducted in actions involving Section 2241. See Rule 1(b), Rules Governing Section 2254 Cases in the United States District Courts.
I. BACKGROUND
Mr. Banks is a federal prisoner who was convicted in two cases in the United States District Court for the Western District of Pennsylvania. While his appeal was pending, Mr. Banks initiated the present action under 28 U.S.C. § 2241.
See Petition at p. 2.
The Third Circuit Court of Appeals affirmed during the pendency of the present action. See United States v. Vampire Nation, ___ F.3d ___, 2006 WL 1679385 (3d Cir. June 20, 2006).
II. THE UNAVAILABILITY OF RELIEF UNDER SECTION 2241
Mr. Banks' exclusive remedy lies in the procedure established in 28 U.S.C. § 2255 (2000).
Mr. Banks filed a habeas action in the Western District of Pennsylvania, and the court ordered dismissal with an explanation that vacatur of the conviction could only be pursued under 28 U.S.C. § 2255. Magistrate Judge's Report and Recommendation at p. 2, Banks v. Warden, Allegheny County Jail, Civil Action No. 05-502 (W.D. Pa. Feb. 3, 2006), adopted, Memorandum Order (W.D. Pa. Feb. 27, 2006). The Court need not decide whether the refiling of the habeas petition constitutes an abuse of the writ. See George v. Perrill, 62 F.3d 333, 334-35 (10th Cir. 1995) (upholding dismissal of a second or successive petition that had been filed under 28 U.S.C. § 2241).
Attacks on the execution of a sentence fall under Section 2241, while challenges to the validity of a conviction or sentence trigger Section 2255. As noted above, Mr. Banks has relied on 28 U.S.C. § 2241, rather than 28 U.S.C. § 2255. The difference is material. For example, a motion under Section 2255 must be filed in the sentencing court, which was the Western District of Pennsylvania.
See McIntosh v. United States Parole Commission, 115 F.3d 809, 811 (10th Cir. 1997).
See supra p. 1.
See 28 U.S.C. § 2255 (2000); United States v. Edwards, 69 F.3d 419, 441 n. 14 (10th Cir. 1995).
See supra p. 1.
In the petition, Mr. Banks alleges that the trial court lost jurisdiction when it:
• instructed the jury in a manner that altered the indictment, and
• convicted for mail fraud without proof that the mailbox used in the offense had involved federal property.
The Court assumes arguendo that Mr. Banks' claim is jurisdictional. Cf. United States v. Cotton, 535 U.S. 625, 630 (2002) (holding that defects in an indictment do not deprive the court of jurisdiction).
Petition, passim.
These claims implicate the validity of the conviction and sentence rather than the means in which the sentence is being carried out. In these circumstances, Section 2255 would ordinarily govern.
See Morrison v. Pugh, 162 F.3d 1173, 1998 WL 704670, Westlaw op. at 1 (10th Cir. Oct. 2, 1998) (unpublished op.) (holding that a federal prisoner's challenge to the sentencing court's jurisdiction "is clearly an attack on the validity of his sentence" and must be brought under Section 2255 rather than Section 2241); Willis v. Connor, 54 Fed. Appx. 313 (10th Cir. Jan. 10, 2003) (unpublished op.) (holding that a federal prisoner's claim involving the absence of jurisdiction and voidness of the indictment could only be brought under Section 2255 because the action involved an attack on the sentence itself).
According to Mr. Banks, his claims involve the absence of jurisdiction, which can be raised at any time. The argument is misguided, as the availability of a jurisdictional claim at any time does not mean that it can be raised in any form.
Petition at p. 1.
In 28 U.S.C. § 2255, Congress authorized a motion to vacate the sentence based on grounds that the trial court lacked jurisdiction. But Congress restricted the claim to a motion under 28 U.S.C. § 2255 except when the remedy is "inadequate or ineffective." Because Section 2255 expressly covers jurisdictional claims, the remedy cannot be considered "inadequate or ineffective."
See 28 U.S.C. § 2255 (2000).
28 U.S.C. § 2255 (2000).
See Smith v. Holt, 166 F.3d 348, 1998 WL 794958, Westlaw op. at 1 (10th Cir. Nov. 16, 1998) (unpublished op.) (holding that the remedy in 28 U.S.C. § 2255 was not inadequate or ineffective on a federal prisoner's claim involving a lack of territorial jurisdiction); see also Robinson v. United States, 194 F.3d 1321, 1999 WL 786759 (10th Cir. Oct. 4, 1999) (unpublished op.) (holding that a prisoner's jurisdictional claim could not be asserted in a habeas petition because the remedy under 28 U.S.C. § 2255 was not inadequate or ineffective); English v. Booker, 107 F.3d 880, 1997 WL 100932, Westlaw op. at 2 (10th Cir. Mar. 7, 1997) (unpublished op.) (holding that a federal prisoner could only attack the sentencing court's jurisdiction under Section 2255 because the remedy was not inadequate or ineffective); see also Cradle v. United States, 290 F.3d 536, 538 (3d Cir. 2002) ( per curiam) (rejecting a federal prisoner's invocation of Section 2241 based on a contention that "the district court's jurisdiction can be raised `any place and at any time'").
As a result, the Court must decide whether to recharacterize the petition as one for relief under Section 2255. The Court should not do so in the absence of an express request from Mr. Banks.
See Castro v. United States, 540 U.S. 375, 383 (2003); see also Pliler v. Ford, 542 U.S. 225, 234 (2004) ("although [recharacterization as a Section 2255 motion] is often used to help pro se petitioners, it could also harm them" (citation omitted)).
III. RECOMMENDATION AND NOTICE OF RIGHT TO OBJECT
For the reasons discussed above, the Court should summarily dismiss the action.
The Petitioner may object to this report and recommendation. To do so, Mr. Banks must file an objection with the Clerk of this Court. The deadline for objections is July 20, 2006. Failure to file timely objections would result in waiver of the right to appeal the recommended dismissal.
See 28 U.S.C. § 636(b)(1) (2000).
See W.D. Okla. LCvR 72.1(a).
See Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991); see also Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996) ("Issues raised for the first time in objections to the magistrate judge's recommendation are deemed waived.").
IV. STATUS OF THE REFERRAL
This referral to the undersigned is terminated.