KIDERLEN v. UNITED STATES OF AMERICA

Filing 10

ENTRY Concerning Selected Matters; Mr. Kiderlen shall have through June 15, 2011, in which to either withdraw his petition or show cause why it should not be dismissed for lack of jurisdiction. Mr. Kiderlen's request to proceed in forma pauperis 3 is granted. For reasons explained in this Entry, Mr. Kiderlen shall have through June 15, 2011, in which to show cause why this action can proceed under § 2241 or why, in the alternative, it should not be transferred to the United States District Court for the Eastern District of Missouri. Mr. Kiderlen's motion for release 5 and motion for appointment of counsel 4 are each denied for the present as premature in light of the need to determine whether the action will go forward in this District as one for habeas corpus relief. The clerk shall include a copy of the petition and attachments 1 with the petitioner's copy of this Entry. Signed by Judge Jane Magnus-Stinson on 5/25/2011. Copy to Petitioner via U.S. mail.(NKD)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA

STEVEN D. KIDERLEN,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

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No. 2:11-cv-127-JMS-DKL

Entry Concerning Selected Matters
Steven Kiderlen challenges the validity of his conviction in the Eastern District of
Missouri in United States v. Kiderlen, No. 4:05-cr-0721-ERW-1 (hereafter “conviction”).
Mr. Kiderlen is confined in this District serving the executed portion of the sentence
imposed in such action. He has commenced the present action through the filing of his
petition for void judgment-F.R.Civ.P. 60(B)(4) (hereafter “petition”). The petition is
accompanied by a number of ancillary items, some of which are addressed in this Entry.
I.
The form and forum Mr. Kiderlen has chosen for his petition are the first items to
be considered. The Federal Rules of Civil Procedure, including Rules 59 and 60, do not
apply in criminal proceedings. United States v. Fair, 326 F.3d 1317, 1318 (11th Cir.
2003). This court, moreover, is not the trial court relative to the conviction and hence is
not a court in which an action brought pursuant to 28 U.S.C. § 2255 can be filed.
Treating the petition precisely as drafted and as filed, therefore, it would have to
be denied for lack of jurisdiction.
II.
Mr. Kiderlen challenges the validity of his conviction. In doing so, he would
secure his freedom. Seeking to liberate an inmate from custody involves the specialized
legal remedy of habeas corpus relief. “Specialized” actually yields to the realm of the
exclusive, because an action for habeas corpus is the exclusive remedy to challenge
the fact or duration of confinement. Preiser v. Rodriguez, 411 U.S. 475, 489 (1973).
Because Mr. Kiderlen’s petition challenges the fact and duration of his
confinement, therefore, the court treats the petition as a petition for writ of habeas

corpus pursuant to 28 U.S.C. § 2241. If Mr. Kiderlen does not accept this treatment of
his petition, he shall have through June 15, 2011, in which to either withdraw his
petition or show cause why it should not be dismissed for lack of jurisdiction.
III.
Mr. Kiderlen’s request to proceed in forma pauperis [3] is granted.
IV.
Even treating the petition as one seeking federal habeas corpus relief, however,
Mr. Kiderlen may have an uphill path to travel in demonstrating that a remedy via §
2241(c)(3) should be available to him. And it is his burden to show that such a remedy
is the proper one. Jeffers v. Chandler, 253 F.3d 827, 830 (5th Cir. 2001); Charles v.
Chandler, 180 F.3d 753, 756 (6th Cir. 1999).
A writ of habeas corpus via § 2241 may be utilized by a federal prisoner to
challenge the legality of his or her conviction or sentence in those cases where § 2255
is “inadequate or ineffective to test the legality of [the] detention.” 28 U.S.C. § 2255(e).
A remedy via § 2255 is "inadequate" when its provisions limiting multiple § 2255
motions prevent a prisoner from obtaining review of a legal theory that "establishes the
petitioner's actual innocence." Taylor v. Gilkey, 314 F.3d 832, 835 (7th Cir. 2002).
On the basis of the foregoing, therefore, Mr. Kiderlen shall have through June
15, 2011, in which to show cause why this action can proceed under § 2241 or why, in
the alternative, it should not be transferred to the United States District Court for the
Eastern District of Missouri.
V.
Mr. Kiderlen’s motion for release [5] and motion for appointment of counsel [4]
are each denied for the present as premature in light of the need to determine whether
the action will go forward in this District as one for habeas corpus relief.
The clerk shall include a copy of the petition and attachments [1] with the
petitioner’s copy of this Entry.
IT IS SO ORDERED.
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05/25/2011
Date:

Hon. Jane Magnus-Stinson, Judge
United States District Court
Southern District of Indiana

NOTE TO CLERK: PROCESSING THIS DOCUMENT REQUIRES ACTIONS OTHER THAN DOCKETING AND DISTRIBUTION.

Distribution:
Steven D. Kiderlen
NO. 32711-044
TERRE HAUTE - USP
U.S. PENITENTIARY
Inmate Mail/Parcels
P.O. BOX 33
TERRE HAUTE, IN 47808