Rodriguez-Mata v. United States of America

Filing 2

MEMORANDUM AND ORDER ENTERED: This matter is dismissed for lack of jurisdiction. Signed by Senior District Judge Richard D. Rogers on 9/8/2011.(Mailed to pro se party Adrian Mata Rodriguez by regular mail.) (smnd)

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS ADRIAN MATA RODRIGUEZ, Petitioner, CIVIL ACTION No. 11-3157-RDR vs. UNITED STATES OF AMERICA, Respondent. MEMORANDUM AND ORDER This matter comes before the court on a petition for habeas corpus filed pursuant to 28 U.S.C. § 2241 by a federal prisoner incarcerated at the Federal Correctional Institution, Fort Dix, New Jersey. Background Petitioner was convicted in July 2010 in the District of Kansas. In this action, he alleges the prosecution’s case against him was flawed because it was built on information supplied by an untested informant. He also argues that he was improperly charged with the possession of drugs found in a vehicle in which he was a passenger. Discussion The purposes of an application for habeas corpus filed pursuant to 28 U.S.C. § 2241 and a motion pursuant to 28 U.S.C. § 2255 are distinct. “Congress long ago decided that a federal prisoner's attempt to attack the legality of his conviction or sentence generally must be brought under § 2255, and in the district court that convicted and sentenced him.” Prost v. Anderson, 636 F.3d 578, 581 (10th Cir. 2011). In contrast, petitions brought pursuant to 28 U.S.C. § 2241 are “generally reserved for complaints about the nature of a prisoner's confinement, not the fact of his confinement,” id., and “must be filed in the district where the prisoner is confined.” Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir. 1996). The present action under § 2241 is not properly filed in this court, as petitioner is incarcerated in New Jersey. Next, because the petitioner’s allegations challenge the legality of his conviction, they must be presented in a motion pursuant to § 2255. Generally, a petitioner may present only pursuant to § 2255. See 28 U.S.C. § 2255(h). one motion Therefore, the courts should not sua sponte convert a pro se pleading into a habeas corpus action due, in part, to the “concern that a subsequent § 2255 motion would be considered successive and barred” and could “prevent a prisoner from raising a legitimate claim in a subsequent petition.” 2 United States v. Torres, 282 F.3d 1241, 1245-46 (10th Cir. 2002)(quoting United States v. Kelly, 235 F.3d 1238, 1241 (10th Cir. 2000)). Accordingly, the court will dismiss this § 2241 action without prejudice for lack of jurisdiction and does not construe it as a motion under §2255. IT IS, THEREFORE, BY THE COURT ordered this matter is dismissed for lack of jurisdiction. A copy of this order shall be transmitted to the petitioner. IT IS SO ORDERED. Dated at Topeka, Kansas, this 8th day of September, 2011. S/ Richard D. Rogers RICHARD D. ROGERS United States Senior District Judge 3

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