Humphreys v. Maye et al

Filing 2

ORDER ENTERED: Petitioner is granted provisional leave to proceed in forma pauperis for the sole purpose of dismissal of this action. This action is dismissed and all relief is denied without prejudice. Signed by Senior District Judge Richard D. Rogers on 6/7/2012. (Mailed to pro se party James Humphreys by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
JAMES HUMPHREYS,
Petitioner,
v.

CASE NO. 12-3088-RDR

C. MAYE,
et al.,
Respondents.
O R D E R
This pro se petition for writ of habeas corpus was filed
pursuant to 28 U.S.C. § 2241, by an inmate of the United States
Penitentiary, Leavenworth, Kansas.

The court finds that it lacks

jurisdiction over petitioner’s claims and dismisses this petition
without prejudice.
The statutory fee for filing a habeas corpus petition is $5.00.
Petitioner has neither paid the fee nor submitted a motion to
proceed in forma pauperis (IFP). He ordinarily would be required to
satisfy the filing fee in one of these two ways.

However, since the

court dismisses the petition for lack of jurisdiction, it grants
provisional leave for that sole purpose.
Mr. Humphreys claims that he is being illegally incarcerated
and moves the court for a reduction in his federal sentence.
allegations indicate the following factual background.

His

“Years

before” his federal charges, petitioner was convicted of aggravated
battery and armed robbery and committed to the custody of the
Illinois Department of Corrections (IDOC).

Upon completion of his

Illinois sentences, he received letters from the IDOC informing him
that his civil rights were restored.

He was convicted in federal

court of Ex Felon in Possession of Firearm under 18 U.S.C. §

922(g)(1).

He is currently serving his federal sentence with a

projected release date of October 22, 2017, and a maximum discharge
date of October 29, 2019.
Petitioner asserts that he is entitled to a reduction in his
federal

sentence

“on

the

grounds

that

Armed

Career

Offender

Provision 18 U.S.C. §§ 921(a)(2), 924(e) is no longer applicable
because his state convictions have since been expired” and his civil
rights were restored.
(7th Cir. 2009).

He cites Buchmeier v. U.S., 581 F.3d 561, 566

Cf., U.S. v. Burns, 934 F.2d 1157, 1159 (10th Cir.

1991)(Despite receiving a restoration of civil rights certification
after serving prior sentences, an individual may be charged under
section 922(g) if he could not legally possess a firearm under the
law in the state in which he was previously convicted.). Petitioner
argues that since he received letters from the IDOC stating that his
civil rights were restored, he had a lawful right to possess
firearms.

He also argues that “convictions expunged subsequent to

the federal sentencing” are not to be considered convictions by the
court in determining criminal history, and reasons therefrom that
his “expired” state convictions should not have been used to enhance
his federal sentence.
The two cases cited herein, which reach different results, were
rulings made on appeal of denial of a criminal defendant’s motion to
vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255.
Petitioner’s claims are clearly challenges to his federal sentence.
28 U.S.C. § 2255 pertinently provides:
A prisoner in custody under sentence of a (federal) court
. . . 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 is
otherwise subject to collateral attack, may move the court
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which imposed the sentence to vacate, set aside or correct
the sentence.
Id.

That section further provides:
An application for writ of habeas corpus in behalf of a
prisoner who is authorized to apply for relief by motion
pursuant to this section, shall not be entertained if it
appears that the applicant has failed to apply for relief,
by motion, to the court which sentenced him . . . . unless
it also appears that the remedy by motion is inadequate or
ineffective to test the legality of his detention.

Id.

A motion under § 2255 must be filed in the district that

imposed sentence, and is the “exclusive remedy” for challenging a
sentence unless there is a showing that the remedy is inadequate or
ineffective.1

See 28 U.S.C. § 2255; Haugh v. Booker, 210 F.3d 1147,

1149 (10th Cir. 2000).
A § 2241 petition has a distinct purpose from a § 2255 motion.
The § 2241 petition attacks the execution of a sentence rather than
its

validity.

The

§

2241

petition

“is

not

an

additional,

alternative, or supplemental remedy to the relief afforded by motion
in the sentencing court under § 2255.”

Williams v. United States,

323 F.2d 672, 673 (10th Cir. 1963)(per curiam), cert. denied, 377
U.S. 980 (1964).

The § 2255 remedy is inadequate or ineffective

only in “extremely limited circumstances.”
F.3d 1177, 1178 (10th Cir. 1999).

Caravalho v. Pugh, 177

The fact that the petitioner’s §

2255 motion may be denied on statute of limitations grounds is not
such a circumstance.

Haugh, 210 F.3d at 1150.

Nor does an

erroneous prior decision on a § 2255 motion by the sentencing court

1
On page 3 of his Petition, Mr. Humphreys states that he “moves said
court whom imposed the sentence to vacate, set aside or correct his sentence.”
However, there is no record indicating that Mr. Humphreys was sentenced in this
federal judicial district. The court takes judicial notice of U.S. v. Humphreys,
03-cr-00480-1 (N.D. Ill. June 28, 2005), where Mr. Humphreys was convicted under
18 U.S.C. 922(g). Petitioner’s proper remedy for his claim is to file a § 2255
motion in the sentencing court.

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render the § 2255 remedy ineffective.
1070,

1073

(10th

Cir.

2010).

See Sines v. Wilner, 609 F.3d

Petitioner alleges no

facts or

circumstances that would entitle him to review of challenges to his
sentence

by

a

different federal

district

court under

§

2241.

Accordingly, this court finds that it does not have jurisdiction to
hear petitioner’s challenges to the legality of his sentence.
Haugh, 210 F.3d at 1150.
The court declines to transfer this action to the sentencing
court for several reasons including that petitioner has not provided
the name or location of the court in which he was sentenced.
However, the dismissal of this action is without prejudice to
petitioner’s filing a motion in the appropriate federal court.
IT IS THEREFORE BY THE COURT ORDERED that petitioner is granted
provisional leave to proceed in forma pauperis for the sole purpose
of dismissal of this action.
IT IS FURTHER ORDERED that this action is dismissed and all
relief is denied, without prejudice.
DATED:

This 7th day of June,

2012, at Topeka, Kansas.

s/RICHARD D. ROGERS
United States District Judge

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