Boose v. Mays

Filing 5

ORDER ENTERED: Petitioner's motion 2 for leave to proceed in forma pauperis is granted. Petitioner is granted twenty (20) days to show cause why the petition seeking relief under 28 U.S.C. 2241 should not be dismissed without prejudice for lack of prosecution. Signed by Senior District Judge Richard D. Rogers on 3/15/2013. (Mailed to pro se party Phillip E. Boose by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

PHILLIP E. BOOSE,
Petitioner,
v.

CASE NO. 13-3016-RDR

CLAUDE MAYE,
Respondent.

O R D E R
This matter comes before the court on a form petition seeking
a writ of habeas corpus under 28 U.S.C. § 2241, filed pro se by a
prisoner incarcerated in a federal camp facility in Leavenworth,
Kansas.

Petitioner’s motion for leave to proceed in forma pauperis

in this habeas action is granted.
Petitioner was convicted in the United States District Court for
the Western District of Missouri, and sentenced as an armed career
criminal under the Armed Career Criminals Act (ACCA).

He states he

thereafter sought relief without success in a post-conviction motion
under 28 U.S.C. § 2255.
Petitioner filed the present action to challenge the sentencing
court’s

designation

of

petitioner

as

a

career

criminal,

and

essentially contends a prior conviction should not have been used to
trigger application of the ACCA.

Absent that sentencing enhancement,

petitioner argues he has fully served the underlying ten year sentence
and thus should have been released December 31, 2012.
Having reviewed the petition, the court finds it is subject to

being summarily dismissed because the remedy available to petitioner
is under § 2255 in the sentencing court, and not under § 2241 in the
District of Kansas.
The remedies available to a federal prisoner under 28 U.S.C. §
2255 and 28 U.S.C. § 22241 are distinct.
F.3d 1177, 1178 (10th Cir.1999).

See Caravalho v. Pugh, 177

Ordinarily, a challenge to the

validity of a prisoner's conviction or sentence must be presented
pursuant to § 2255 and must be filed in the district where the sentence
was imposed.

Bradshaw v. Story, 86 F.3d 164, 166–67 (10th Cir.1996).

In contrast, a prisoner may challenge the execution of a sentence by
a petition under § 2241 and must file such an action in the district
of confinement.

Section 2241 does not provide an alternative or

supplemental remedy to § 2255.

Id. at 166.

A single exception to this distinction between the remedies is
the “savings clause” of § 2255(e).

That provision allows a prisoner

to pursue a collateral challenge where it “appears that the remedy
by motion [§ 2255] is inadequate or ineffective to test the legality
of his detention.” This exception is available “only in extremely
limited circumstances.”

Caravalho, 177 F.3d at 1178.

Here, petitioner is challenging the validity of his sentence.
Neither the fact that he was denied relief under § 2255, or that his
filing of another § 2255 motion in the sentencing court is restricted
under the Antiterrorism and Effective Death Penalty Act, see 28 U.S.C.
§§ 2244(b)(2)and 2255, establish that this statutory remedy in
inadequate or ineffective.

Bradshaw v. Story, 86 F.3d 164, 166 (10th

Cir.1996); Caravalho v. Pugh, 177 F.3d 1177, 1179 (10th Cir.1999).
Nor does petitioner make any showing that the remedy available in the
sentencing court pursuant to § 2255 is inadequate or ineffective

because a fundamental miscarriage of justice will occur if his
petition is not considered. See Murray v. Carrier, 477 U.S. 478, 496
(1986)

(a

fundamental

miscarriage

of

justice

occurs

when

“a

constitutional violation has probably resulted in the conviction of
one who is actually innocent”).
Accordingly, the court directs petitioner to show cause why the
petition should not be dismissed because there is no showing to
establish

this

court’s

jurisdiction

petitioner’s claim of sentencing error.

under

§

2241

to

review

The failure to file a timely

response may result in the petition being dismissed without prejudice
for lack of jurisdiction, and without further prior notice.
IT IS THEREFORE ORDERED that petitioner’s motion for leave to
proceed in forma pauperis (Doc. 2) is granted.
IT IS FURTHER ORDERED that petitioner is granted twenty (20) days
to show cause why the petition seeking relief under 28 U.S.C. § 2241
should not be dismissed without prejudice for lack of jurisdiction.
DATED:

This 15th day of March 2013, at Topeka, Kansas.

s/ Richard D. Rogers
RICHARD D. ROGERS
United States District Judge