David Kitchen v. D. Harmon
UNPUBLISHED OPINION FILED. [17-10824 Affirmed] Judge: RHB, Judge: PRO, Judge: DRW. Mandate issue date is 06/01/2018 [17-10824]
Date Filed: 04/09/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
April 9, 2018
Lyle W. Cayce
DAVID ROBERT KITCHEN,
Plaintiff - Appellant
D.J. HARMON, Warden, Federal Correctional Institution Seagoville,
Defendant - Appellee
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:17-CV-942
Before BARKSDALE, OWEN, and WILLETT, Circuit Judges.
PER CURIAM: *
David Robert Kitchen, federal prisoner # 85672-083, was convicted in the
Eastern District of Virginia of possession of child pornography, in violation of
18 U.S.C. § 2252, and sentenced to 108 months’ imprisonment. He did not
appeal or seek relief under 28 U.S.C. § 2255, but instead filed a pro se petition
under 28 U.S.C. § 2241 in the Northern District of Texas, where he is
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.
Date Filed: 04/09/2018
incarcerated. The court dismissed the petition. Also proceeding pro se on
appeal, Kitchen challenges the validity of his conviction and sentence.
Kitchen’s claims implicate § 2255. A § 2255 motion, however, must be
filed in the sentencing court, which, in this instance, is the Eastern District of
Virginia. E.g., § 2255(a); Reyes-Requena v. United States, 243 F.3d 893, 895
n.3 (5th Cir. 2001); Solsona v. Warden, F.C.I., 821 F.2d 1129, 1132 (5th Cir.
1987). Because Kitchen was not sentenced in the Northern District of Texas,
he may not seek § 2255 relief there. § 2255(a).
On the other hand, Kitchen may proceed under § 2241 if he shows § 2255
offers no adequate or effective relief. E.g., Jeffers v. Chandler, 253 F.3d 827,
830 (5th Cir. 2001); see also § 2255(e). Specifically, Kitchen must establish
that his petition sets forth a claim “based on a retroactively applicable
Supreme Court decision which establishes that [he] may have been convicted
of a nonexistent offense” and that the claim “was foreclosed by circuit law at
the time when [it] should have been raised in [his] trial, appeal, or first § 2255
motion”. Reyes-Requena, 243 F.3d at 904.
Kitchen has not made the required showing. Accordingly, the district
court did not err in concluding § 2241 relief was unavailable. See Jeffers, 253
F.3d at 830–31.
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