Opinion
Civ. No. 05-319 (PAM/JSM).
April 4, 2005
ORDER
This matter is before the Court on Petitioner's objections to United States Magistrate Judge Janie S. Mayeron's Report and Recommendation ("RR") dated February 16, 2005. Although Petitioner applied for habeas corpus relief under 28 U.S.C. § 2241, Magistrate Judge Mayeron recommended that the petition be construed as a motion for relief under 28 U.S.C. § 2255, and that this matter be transferred to the United States District Court for the Western District of Washington where Petitioner may seek relief under § 2255. The Court has conducted a de novo review of the record. 28 U.S.C. § 636(b)(1); Local Rule 72.1(c). Based upon such review and Petitioner's arguments, the Court adopts the RR.
On September 11, 1998, Petitioner was convicted in the Western District of Washington on several child pornography charges. He was sentenced to 121 months imprisonment, which he is presently serving at the Federal Correctional Institution in Sandstone, Minnesota.
Petitioner initially challenged his sentence by motioning for relief under § 2255, which was dismissed by the trial court. In this action, Petitioner — through his self-styled application for writ of habeas corpus relief under § 2241 — attempts, for at least the second time, to attack the constitutionality of his indictment, trial, conviction, and sentence. However, as Magistrate Judge Mayeron cogently explained, Petitioner is precluded from bringing his challenges to this Court. Because Petitioner was convicted and sentenced in the Western District of Washington, it is plain that any challenge to his conviction or sentence can only be brought in that district under § 2255. See 28 U.S.C. § 2255 at ¶ 5; Hill v. Morrison, 349 F.3d 1089, 1091 (8th Cir. 2003) (noting that "a collateral challenge to a federal conviction or sentence must generally be raised in a motion to vacate filed in the sentencing court under § 2255 . . . and not in a habeas petition filed in the court of incarceration . . . under § 2241").
More precisely, Petitioner's "application for a writ of habeas corpus [under § 2241] . . . shall not be entertained if it appears that . . . [the sentencing court] has denied him relief, unless it also appears that the remedy by motion [under § 2255] is inadequate or ineffective to test the legality of his detention." 28 U.S.C. § 2255 at ¶ 5. Since Petitioner has already been denied § 2255 relief by the sentencing court, this Court cannot entertain this challenge unless Petitioner affirmatively demonstrates that the remedy afforded by § 2255 "is inadequate or ineffective to test the legality of his detention." Id.
Here, Petitioner claims that § 2255 is "inadequate or ineffective to test the legality of his detention" because he previously filed a § 2255 motion which was dismissed, and he failed to perfect a timely appeal. This argument is without merit. See United States v. Lurie, 207 F.3d 1075, 1077 (8th Cir. 2000) (recognizing that a § 2255 motion is not inadequate or ineffective merely because: (1) § 2255 relief has previously been denied, (2) petitioner was not allowed to file a second or successive § 2255 motion, (3) a second or successive § 2255 motion was dismissed, or (4) petitioner allowed the statute of limitations and/or grace period to expire). Thus, under the circumstances, Magistrate Judge Mayeron correctly concluded that Petitioner cannot avail himself to habeas corpus relief in this forum.
In the interest of justice, however, it is appropriate to construe the habeas petition as a "successive" § 2255 motion and to transfer this case to the Western District of Washington, the only district having subject matter jurisdiction over Petitioner's challenges herein. See 28 U.S.C. §§ 1406(a) and 1631. The Court, however, acknowledges that two conditions precedent must generally be satisfied before construing Petitioner's habeas corpus petition to be a § 2255 motion. "First, the court must warn the litigant of the restrictions on second or successive motions, and of the one-year limitations period, set forth in 28 U.S.C. § 2255. Second, the court must provide him an opportunity either to consent to the reclassification or to withdraw his motion." Morales v. United States, 304 F.3d 764, 767 (8th Cir. 2002); see also Castro v. United States, 540 U.S. 375, 383 (2003).
Petitioner has already sought § 2255 relief in the Western District of Washington, which was denied on the merits. Here, in the District of Minnesota, Petitioner advances the same claims and prays for the same relief. Thus, Petitioner's current attack "if construed as a § 2255 petition, would present a . . . successive § 2255 motion for modification of his sentence."Willoughby v. United States, Nos. Civ. 01-588, Crim 98-179(5), 2002 WL 31548082, at *2 (D. Minn. Nov. 12, 2002) (Montgomery, J.) (citations omitted).
The function of this dual-pronged warning is to alert the litigant of substantial barriers to filing successive § 2255 motions. See Morales, 304 F.3d at 765. In other words, without this warning, there is a danger that a litigant will be denied effective collateral review "because what he later intended to be his first § 2255 motion could be dismissed as a second or successive § 2255 motion under [ 28 U.S.C. § 2244's] gatekeeping provisions." See id. Nevertheless, "[t]his line of reasoning is not applicable to Petitioner, who has already had the opportunity to bring all of his collateral challenges to his sentence in his first § 2255 motion and is now asserting the same type of arguments" here. Willoughby, 2002 WL 31548082, at *3 n. 1. Thus, without contravening the rule prescribed in Morales, it is proper for the Court to construe Petitioner's application for habeas corpus relief under § 2241 to be a motion to vacate his conviction and sentence pursuant to § 2255. Petitioner must seek permission from the Ninth Circuit to pursue his claims in the Western District of Washington. See 28 U.S.C. § 2244(b)(3). He cannot pursue them here.
In short, this warning only applies to situations where a litigant has not previously sought relief under § 2255.
Lastly, Petitioner has filed an application seeking leave to proceed in forma pauperis ("IFP"). However, since the petition is construed to be a § 2255 motion, no filing fee is required for this case and his IFP application is moot.
The Court has conducted a de novo review of the record regarding Magistrate Judge Mayeron's RR. Based on that review, the Court ADOPTS the RR.
Accordingly, IT IS HEREBY ORDERED that:
1. Petitioner's application for habeas corpus relief under 28 U.S.C. § 2241 (Clerk Doc. No. 1), is construed as a motion to vacate his conviction and sentence pursuant to 28 U.S.C. § 2255;
2. The Clerk of Court is directed to TRANSFER this action to the Western District of Washington pursuant to 28 U.S.C. §§ 1406(a) and 1631; and
3. Petitioner's application to proceed IFP, (Clerk Doc. No. 2), is DENIED as moot.
LET JUDGMENT BE ENTERED ACCORDINGLY.