McGlothen v. Hollingsworth

Filing 2

ORDER ENTERED: Petitioner is granted thirty (30) days in which to either pay the filing fee of $5.00 or submit a properly-supported motion for leave to proceed in forma pauperis on court-provided forms. Within the same thirty-day period, petitioner is required to show cause why this action should not be dismissed for lack of jurisdiction. Signed by Senior District Judge Richard D. Rogers on 2/14/2013. (Mailed to pro se party Reginald L. McGlothen by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
REGINALD L. McGLOTHEN,
Petitioner,
v.

CASE NO.

13-3021-RDR

LISA J.W. HOLLINGSWORTH,
Respondent.
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.
$5.00.

The fee for filing a habeas corpus action is

Petitioner has neither paid the fee nor submitted a motion

to proceed in forma pauperis supported by the requisite financial
information.1

He is required to satisfy the filing fee.

He is also

required to show cause why this action should not be dismissed for
lack of jurisdiction.
Petitioner seeks to “collaterally attack[]” his 262-month
federal sentence imposed in 2008 by the United States District Court
for the District of Missouri upon his jury conviction of felon in
possession of a firearm.

He mainly claims that the court lacked

interstate commerce jurisdiction.
1

Having considered the petition,

28 U.S.C. § 1915 requires that a prisoner seeking to bring a civil action
without prepayment of fees submit an affidavit described in subsection (a)(1),
and a “certified copy of the trust fund account statement (or institutional
equivalent) for the prisoner for the 6-month period immediately preceding the
filing” of the action “obtained from the appropriate official of each prison at
which the prisoner is or was confined.” 28 U.S.C. § 1915(a)(2).

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the court finds that it lacks jurisdiction over petitioner’s claims.
Even though petitioner baldly states that he is attacking the
execution of his sentence, the allegations in his petition are
clearly challenges to the legality of his federal conviction or
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
which imposed the sentence to vacate, set aside or correct
the sentence.
Id.

That section additionally 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.

It should be clear from the above statutory provisions that a

motion under § 2255 must be filed in the district court that imposed
sentence and is the “exclusive remedy” for challenging a federal
sentence unless there is a showing that the remedy is inadequate or
ineffective.

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

1149 (10th Cir. 2000).

The remedy under § 2255 is inadequate or

ineffective only in “extremely limited circumstances.”

Caravalho

v. Pugh, 177 F.3d 1177, 1178 (10th Cir. 1999).
A § 2241 petition has a distinct purpose from a § 2255 motion,
and attacks the execution of a sentence rather than its validity.
2

Claims appropriately brought under § 2241 include challenges to
sentence credit or good time calculations, disciplinary sanctions,
and parole decisions.

A § 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).
Petitioner alleges no facts whatsoever to suggest that the
remedy provided under § 2255 is or has been inadequate or ineffective.
He does not even disclose whether or not he raised his claims on direct
appeal to the Eighth Circuit Court of Appeals.

Nor does he disclose

if he has already litigated his claims by § 2255 motion in the
sentencing court, the denial of which could have also been appealed
to the Eighth Circuit.

Petitioner’s claims are clearly ones that

must have been presented to the sentencing court and the appropriate
Court of Appeals.

Even assuming petitioner has “exhausted” his

direct criminal appeals and his remedy under § 2255, he is not
entitled to additional review by this court under § 2241 of challenges
to his conviction and sentence imposed by a different federal
district court.

Furthermore, it is well-settled that the fact that

a federal inmate may be precluded from filing a second and successive
or an untimely § 2255 motion does not establish that the remedy is
ineffective.

Sines v. Wilner, 609 F.3d 1070 (10th Cir. 2010); see

Bustillo v. Hood, 168 Fed.Appx. 255, 256 (10th Cir.)(unpublished
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opinion cited as persuasive not binding), cert. denied, 547 U.S. 1159
(2006); Caravalho, 177 F.3d at 1178.2

Not even an erroneous decision

on a § 2255 motion renders the § 2255 remedy ineffective.

See Sines,

609 F.3d at 1073.
Petitioner attempts to establish the jurisdiction of this court
by characterizing his claims as an attack on the execution of his
sentence.

However, this bald characterization is in error and thus

does

authorize

not

this

court

to

exercise

challenges to his conviction or sentence.

jurisdiction

over

Nor does this court have

jurisdiction over petitioner’s claims simply by virtue of his
confinement within this judicial district.

In short, this court is

not shown to have jurisdiction to hear challenges to Mr. McGlothen’s
federal conviction or sentence entered by another federal district
court.

Haugh, 210 F.3d at 1150.

IT IS THEREFORE BY THE COURT ORDERED that petitioner is granted
thirty (30) days in which to either pay the filing fee of $5.00 or
submit a properly-supported motion for leave to proceed in forma
pauperis on court-provided forms.
IT IS FURTHER ORDERED that within the same thirty-day period,
petitioner is required to show cause why this action should not be
dismissed for lack of jurisdiction.
The clerk is directed to send IFP forms to petitioner.

2
For the reasons set forth herein, the court also declines to construe this
petition as one brought pursuant to § 2255 and transfer it to the sentencing court.

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IT IS SO ORDERED.
DATED:

This 14th day of February, 2013, at Topeka, Kansas.

s/RICHARD D. ROGERS
United States District Judge

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