Chavez-Cardenas v. United States of America
ORDER ENTERED: The petition is dismissed as a duplicative filing. Signed by Senior District Judge Richard D. Rogers on 4/13/2011. (Mailed to pro se party Hugo Chavez-Cadenas by regular mail.) (smnd)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
CASE NO. 11-3058-RDR
UNITED STATES OF AMERICA,
CASE NO. 11-3071-RDR
UNITED STATES OF AMERICA,
O R D E R
petitions1 seeking habeas corpus relief under 28 U.S.C. § 2241,
submitted by a prisoner currently incarcerated in a federal facility
in New Jersey.
Court records disclose that petitioner was convicted in the
District of Kansas on drug charges.
See U.S. v. Chavez-Cadenas,
Case No. 09-20005-KHV. On November 1, 2010, the Tenth Circuit Court
of Appeals affirmed the district court’s denial of petitioner’s
motion for relief under 28 U.S.C. § 2255.
Petitioner now seeks
relief under §2241, asserting two claims previously raised and
rejected in petitioner’s § 2255 motion, and an additional claim that
It appears the only difference between the two petitions is
the date of petitioner’s signature. The court dismisses the latter
filed petition as a duplicative pleading.
he is entitled to withdraw his plea.
Generally, “‘[a] petition under 28 U.S.C. § 2241 attacks the
execution of a sentence rather than its validity and must be filed
in the district where the prisoner is confined.
A [motion under 28
U.S.C. § 2255] attacks the legality of detention, and must be filed
in the district that imposed the sentence.’”
Haugh v. Booker, 210
F.3d 1147, 1149 (10th Cir.2000)(quoting Bradshaw v. Story, 86 F.3d
164, 166 (10th Cir.1996)).
The distinction between actions brought
pursuant to § 2241 and § 2255 is well-established. Section 2241 “is
not an additional, alternative, or supplemental remedy to ... §
Bradshaw, 86 F.3d at 166.
Rather, a petitioner may
challenge the validity of a conviction under § 2241 only if it is
shown that the remedy under §2255 is “inadequate or ineffective”.
The fact that a petitioner has been denied relief under § 2255
is not sufficient to show the remedy is inadequate.
In the present case, petitioner is not incarcerated in the
District of Kansas, thus this court clearly lacks jurisdiction to
consider the petition.
Also, given the nature of petitioner’s
claims, the court finds transfer of this § 2241 action to the
district where petitioner is presently confined would not be in the
interests of justice because there is no suggestion on the face of
petitioner’s pleading that he could satisfy the burden of showing
the remedy afforded under § 2255 is inadequate or ineffective.
To any extent petitioner may be attempting to seek additional
review under § 2255 in the District of Kansas, petitioner is advised
he must seek and obtain authorization from the Tenth Circuit Court
of Appeals to pursue such relief in a second or successive § 2255
motion in the sentencing court.
IT IS THEREFORE ORDERED that the petition submitted in Case No.
11-3058-RDR seeking habeas corpus relief under 28 U.S.C. § 2241 is
dismissed without prejudice for lack of jurisdiction.
IT IS FURTHER ORDERED that the petition submitted in Case No.
11-3071-RDR is dismissed as a duplicative filing.
This 13th day of April 2011, at Topeka, Kansas.
s/ Richard D. Rogers
RICHARD D. ROGERS
United States District Judge
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