Foster v. United States of America

Filing 2

ORDER DISMISSING CASE without prejudice. To the extent Petitioner wishes to challenge his state court conviction, he must do so under 28 U.S.C. § 2254. Signed by Judge Larry Alan Burns on 4/6/2017 ( All non-registered users served via U.S. Mail Service)(kas)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DERRYL TYRONE FOSTER, Case No.: 17cv0623 LAB (JLB) Petitioner, 12 13 v. 14 ORDER DISMISSING CASE WITHOUT PREJUDICE UNITED STATES OF AMERICA, Respondent. 15 16 17 Petitioner, a state prisoner proceeding pro se, has filed a Motion to Vacate his 18 sentence pursuant to 28 U.S.C. § 2255. He seeks to challenge his San Diego Superior 19 Court conviction for robbery. (See Pet. at 1, ECF No 1.) 20 Under § 2255: 21 A prisoner in custody under a sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside, or correct the sentence. 22 23 24 25 26 27 28 U.S.C. § 2255. 28 1 17cv0623 LAB (JLB) 1 By its very language, § 2255 applies to federal prisoners challenging sentences 2 imposed by the federal courts. Specifically, a prisoner in custody under sentence of a 3 federal court who wishes to collaterally attack the validity of his conviction or sentence 4 must do so by way of a motion to vacate, set aside or correct the sentence under § 2255 in 5 the sentencing court. Broussard v. Lippman, 643 F.2d 1131, 1134 (5th Cir. 1981). 6 Alternatively, a district court may entertain a petition for writ of habeas corpus “in behalf 7 of a person in custody pursuant to the judgment of a State court only on the ground that 8 he is in custody in violation of the Constitution or laws or treaties of the United States” 9 pursuant to 28 U.S.C. § 2254. See 28 U.S.C. § 2254(a); Rose v. Hodges, 423 U.S. 19, 21 10 (1975). 11 Therefore, to the extent Petitioner wishes to challenge his state court conviction, he 12 must do so under 28 U.S.C. § 2254.1 Accordingly, Court DISMISSES the petition 13 without prejudice. 14 IT IS SO ORDERED. 15 DATED: April 6, 2017 16 _________________________________ Larry Alan Burns United States District Judge 17 18 19 20 21 22 23 24 25 26 1 27 28 The Court declines to construe the document as a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. Petitioner has previously filed a petition under § 2254 with this Court, in which he challenged the same state court conviction. The petition was dismissed as successive on March 3, 2017. (See Civil. Case No. 17cv0019 AJB (JLB) (ECF No. 4).) 2 17cv0623 LAB (JLB)

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