Cheney v. United States of America

Filing 2

ORDER re 1 Petition for Writ of Habeas Corpus filed by Jeff Cheney. Venue for such §2241 petition is not proper in this district, so, in the interest of justice, Cheney's §2241 action shall be transferred to the United States Court for the Western District of Missouri, Southern Division, pursuant to 28 U.S.C. § 1406(a). Signed by Judge Mark W Bennett on 11/9/12. (transmitted case electronically to Western District of Missouri) nef mailed to pro se petitioner) (djs)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
CENTRAL DIVISION

JEFF CHENEY,

12cv3087-MWB

Petitioner,

vs.
UNITED STATES OF AMERICA,
Respondent.

No. C 10-3031-MWB
No. CR 07-3010-MWB
ORDER REGARDING
PETITIONER’S PRO SE “MOTION:
DIRECT APPEAL FOR
CORRECTION OF SENTENCE”

This case pursuant to 28 U.S.C. § 2255 is before me on petitioner Jeff Cheney’s
October 15, 2012, “Motion: Direct Appeal For Correction Of Sentence” (Motion) (Civ.
docket no. 33). The Motion has been docketed as a “pro se motion to reconsider,” but I
now conclude that it is something else entirely. As I read the Motion, the relief that
Cheney seeks is not reconsideration, in any respect, of my August 11, 2011, disposition
of his § 2255 Motion, see Memorandum Opinion And Order Regarding Petitioner’s
Section 2255 Motion (Civ. docket no. 16), nor does it seek reconsideration of my May 22,
2012, Order Regarding Petitioner’s Pro Se Request To Entertain Rule 60(b)(6) Motion
(Civ. docket no. 28). Moreover, it is not a notice of appeal, as the Motion is a “direct
appeal” only in the sense that it is a direct request that this court intervene on Cheney’s
behalf to compel the Bureau of Prisons (BOP) to give him credit for over a year-and-a-half
served on a sentence on a state conviction in Webster County, Iowa, Case No.
FECR326343, which he contends has not been done.
At Cheney’s sentencing hearing, I did direct that his sentence of 216 months on a
federal charge should run concurrently with the sentence on a prior state conviction, and
that direction was subsequently reflected in an Amended Judgment In Criminal Case

(Crim. docket no. 211), dated June 22, 2011. Cheney’s contention that he has not
received the credit for time served on his state conviction apparently relies on a response
by the Warden of USMCFP Springfield to his Request For Administrative Remedy, dated
November 4, 2011, indicating that the original Judgment in his federal criminal case was
“silent” as to whether the federal sentence should run concurrently with the previously
imposed state sentence. See Civ. docket no. 33 at 5 (Warden’s Response) (second
attachment).

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I conclude that what Cheney is attempting to assert in the present Motion is a claim
for habeas corpus relief pursuant to 28 U.S.C. § 2241. As I recently explained,
[T]he essential difference between § 2255 and 28 U.S.C.
§ 2241, which still expressly refers to the power of the federal
courts to grant “writs of habeas corpus,” is this: “A petitioner
may attack the execution of his sentence through § 2241 in the
district where he is incarcerated; a challenge to the validity of
the sentence itself must be brought under § 2255 in the district
of the sentencing court.” Matheny v. Morrison, 307 F.3d 709,
711 (8th Cir. 2002) (citing Bell v. United States, 48 F.3d
1042, 1043 (8th Cir. 1995)). To put it another way, “a
collateral challenge to a federal conviction or sentence must
generally be raised in a motion to vacate filed in the sentencing
court under § 2255.” Hill v. Morrison, 349 F.3d 1089, 1091
(8th Cir. 2003). On the other hand, “a federal prisoner may
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I note that Cheney had attached to his Pro Se Request To Entertain Rule 60(b)(6)
Motion (Civ. docket no. 25), as Exhibit 1, a March 7, 2012, Response to a Central Office
Administrative Remedy by the Administrator of National Inmate Appeals stating, “On June
22, 2011, your federal sentence was amended and the term of imprisonment was ordered
to run concurrently with the sentence imposed in Webster County, Iowa, Case No.
FECR326353,” and indicating that the computation of Cheney’s sentence had been updated
to reflect this change, resulting in a projected release date of August 11, 2023. While the
Administrator’s Response casts considerable doubt on Cheney’s claim that his sentence has
not been corrected to reflect the terms of my Amended Judgment concerning his sentence,
the merits of his claim are not now properly before me.
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challenge the manner of execution of his sentence by bringing
his petition under § 2241 rather than § 2255.” Singleton v.
Norris, 319 F.3d 1018, 1022 (8th Cir. 2003) (citing Crouch v.
Norris, 251 F.3d 720, 722–23 (8th Cir. 2001), as considering
cases so holding).
In Matheny, the Eighth Circuit Court of Appeals
identified claims correctly framed as § 2241 claims as
including the petitioners’ challenges to the payment schedule
for financial obligations pursuant to their sentences under the
Inmate Financial Responsibility Program of the BOP.
Matheny, 307 F.3d at 711. Similarly, in Crouch, the Eighth
Circuit Court of Appeals identified claims properly cognizable
under § 2241 as claims that implicate the fact or duration of
confinement, but do not stem from the original conviction or
sentence. Crouch, 251 F.3d at 722–23.
Johnson v. United States, 860 F. Supp. 2d 663, 910-11 (N.D. Iowa 2012) (footnote
omitted; emphasis added).
The claim asserted in Cheney’s present Motion is a claim that implicates the
duration of confinement, and specifically, it is a claim that the BOP has not properly
calculated the duration of his confinement, as required by my direction that his federal
sentence run concurrently with his previously imposed state sentence. Thus, it is properly
cognizable as a claim pursuant to § 2241, but not one seeking § 2255 relief. See id.; see
also Harris v. Bureau of Prisons (BOP) Federal, 787 F. Supp. 2d 350, 355-56 (W.D.
Penn. 2011) (considering a claim by a federal prisoner that the BOP abused its discretion
in calculating his sentences pursuant to § 2241). Because I have construed the present
Motion as a § 2241 petition, I will direct the Clerk of Court to refile the present Motion
as a petition pursuant to 28 U.S.C. § 2241, under a separate case number.
Just as importantly, when the present Motion is construed as a § 2241 petition, it
is clear that it has been brought in the wrong district. Although Cheney was sentenced in
this district, his challenge to the duration of his sentence, as calculated by the BOP, must

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be brought in the district where he is incarcerated. Id. at 910. Cheney’s Motion indicates
that he is incarcerated at USMCFP Springfield in Springfield, Missouri. Springfield,
Missouri, in turn, is in the Western District of Missouri, Southern Division. A federal
court has the authority to transfer “a case laying venue in the wrong division or
district . . . to any district or division in which it could have been brought,” if doing so
would “be in the interest of justice.” See 28 U.S.C. § 1406(a). I find that it would “be
in the interest of justice” to transfer this case to the appropriate district and division to hear
Cheney’s § 2241 claim.
THEREFORE,
1.

Petitioner Jeff Cheney’s October 15, 2012, “Motion: Direct Appeal For

Correction Of Sentence” (Civ. docket no. 33) is construed as a challenge to the execution
(computation of duration) of his sentence, cognizable in an action pursuant to 28 U.S.C.
§ 2241, but not cognizable in the present action pursuant to 28 U.S.C. § 2255.
2.

The Clerk of Court is directed to refile the present Motion as a petition

pursuant to 28 U.S.C. § 2241, under a separate case number.
3.

Venue for such a § 2241 petition is not proper in this district, so, in the

interest of justice, once filed as a separate § 2241 action, Cheney’s § 2241 action shall be
transferred to the United States District Court for the Western District of Missouri,
Southern Division, pursuant to 28 U.S.C. § 1406(a).
IT IS SO ORDERED.
DATED this 9th day of November, 2012.

__________________________________
MARK W. BENNETT
U. S. DISTRICT COURT JUDGE
NORTHERN DISTRICT OF IOWA

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