Hollins v. Armstrong et al

Filing 5

ORDER OF DISMISSAL. Petitioner's request to proceed in forma pauperis is DENIED re doc 4 , 2 . The $5.00 filing fee is now due. The petition for a writ of habeas corpus under 28 USC 2241 is DISMISSED without prejudice subject to petitioner seeking relief by filing a motion under 28 USC 2255 in the underlying case. Signed by Judge Vaughn R Walker on 7/8/2009. (Attachments: # 1 proof of service)(cgk, COURT STAFF) (Filed on 7/8/2009)

1 2 3 4 5 6 7 8 9 10 11 United States District Court For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Petitioner, a federal prisoner incarcerated at the United States Penitentiary, Hazelton in West Virginia, has filed a pro se petition for a writ of habeas corpus under 28 USC section 2241 challenging a November 2007 sentence from this court (Armstrong, J). See United States v Hollins, No CR 92-00126-SBA (ND Cal Nov 28, 2007 (judgment and commitment). Specifically, petitioner is challenging MICHAEL P HOLLINS, Petitioner, v SAUNDRA B ARMSTRONG et al, Respondents. / (Doc ## 2 & 4) ORDER OF DISMISSAL No C-09-1929 VRW (PR) IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

the court's revocation of his supervised release and imposition of a 37 month prison term followed by a 23 month term of supervised release, which resulted after the court found petitioner guilty of five violations of the conditions attached to his term of five years of supervised release. See United States v Hollins, No CR 92-00126-

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SBA, Doc #175. Doc ## 2 & 4.

He also seeks leave to proceed in forma pauperis.

I The court may permit the commencement of this action without prepayment of fees or security thereof if petitioner submits an affidavit that states he is unable to pay such fees or give security thereof. 28 USC § 1915(a)(1). Petitioner's application to

proceed in forma pauperis shows that the average deposits into his prisoner account each month for the most recent six month period were for $500.00 and that the average balance in his prisoner's account each month for the most recent six month period was $67.51. Petitioner's application to proceed in forma pauperis is DENIED. The $5.00 filing fee is now due.

II A prisoner in custody under sentence of a federal court who wishes to attack collaterally the validity of his conviction or sentence must do so by way of a motion to vacate, set aside or correct the sentence pursuant to 28 USC section 2255 in the court which imposed the sentence. See Tripati v Henman, 843 F2d 1160, Only the sentencing See id at

1162 (9th Cir), cert denied, 488 US 982 (1988).

court has jurisdiction to hear these types of challenges. 1163.

A prisoner may not attack collaterally a federal conviction

or sentence by way of a petition for a writ of habeas corpus pursuant to 28 USC section 2241. See Grady v United States, 929 F2d

2

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468, 470 (9th Cir 1991) (challenge to sentence following probation or parole revocation must be brought in sentencing court via section 2255 motion); Tripati, 843 F2d at 1162 (challenge to legality of conviction must be brought in sentencing court via section 2255 motion).

III For the foregoing reasons and for good cause shown, 1. Petitioner's request to proceed in forma pauperis The $5.00 filing fee is now due.

(Doc ## 2 & 4) is DENIED. 2.

The petition for a writ of habeas corpus under 28 USC

section 2241 is DISMISSED without prejudice subject to petitioner seeking relief by filing a motion under 28 USC section 2255 in the underlying case. The clerk is directed to terminate any pending motions as moot, enter judgment in accordance with this order and close the file.

IT IS SO ORDERED.

VAUGHN R WALKER United States District Chief Judge

G:\PRO-SE\VRW\HC.09\Hollins-09-1929-dismissed.wpd

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