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)

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)