Jackson v. Leday

Filing 5

REPORT AND RECOMMENDATION re 1 Petition for Writ of Habeas Corpus filed by Kenner Fitzgerald Jackson: IT IS RECOMMENDED that this suit be dismissed without prejudice for failure to obtain prior authorization from the United States Court of Appeals for the Ninth Circuit as set forth under Sections 2255 and 2244. Objections to R&R due by 4/16/2009. Signed by Magistrate Judge Mark Hornsby on 3/30/09. (crt,Cassanova, M)

UNITED STATES DISTRICT COURT W E S T E R N DISTRICT OF LOUISIANA S H R EV E P O RT DIVISION K E N N E R FITZGERALD JACKSON VERSUS W I L L IE R. LEDAY C I V I L ACTION NO. 08-1304-P J U D GE HICKS M A G I S T R A T E JUDGE HORNSBY

R E P O RT AND RECOMMENDATION In accordance with the standing order of this Court, this matter was referred to the u n d e r s ig n e d Magistrate Judge for review, report and recommendation. S T A T E M E N T OF CLAIM B e f o r e the Court is a petition for a writ of habeas corpus filed by pro se petitioner K e n n e r Fitzgerald Jackson, pursuant to 28 U.S.C. § 2241. This petition was received and f i l ed in this Court on August 29, 2008. Petitioner is on supervised release living in Shre vepo rt, Louisiana. He names Willie R. Leday as respondent. O n August 12, 1992, Petitioner was convicted of one count of escape from the custo dy of the Attorney General in the United States District Court for the Central District o f California. On October 26, 1992, he was sentenced to 60 months imprisonment and three years supervised release. (92-cr-432). On August 17, 1992, Petitioner was convicted of four coun ts of bank robbery in the United States District Court for the Central District of C a l i f o rn i a . On October 26, 1992, he was sentenced to 210 months imprisonment and three years supervised release. (92-cr-418). Petitioner filed his first Section 2255 motion in case

# 9 2 - c r -4 1 8 on November 4, 1996, which was denied by the United States District Court for t h e Central District of California on March 28, 1997. He filed two more Section 2255 m o t i o n s which were denied on July 19, 2002 and March 2, 2006. Petitioner filed his first S e c t i o n 2255 motion in case #92-cr-432 on January 17, 2003, which was denied by the U n i t e d States District Court for the Central District of California on April 1, 2003. He filed o n e more Section 2255 motion which was denied on March 2, 2006. F o r the reasons that follow, Jackson's petition should be dismissed without prejudice f o r failure to obtain prior authorization from the United States Court of Appeals for the Ninth Circu it as set forth under Sections 2255 and 2244. L A W AND ANALYSIS P e t i ti o n e r files this action as a habeas corpus petition under 28 U.S.C. § 2241. How ever, he expressly seeks to have his sentences vacated and set aside. The undersigned is concerned that Petitioner filed this petition under Section 2241 to circumvent the c o n s e q u e n c e s of 28 U.S.C. § 2244(a) which precludes Petitioner from filing a successive mo tion to vacate without obtaining prior authorization from the Ninth Circuit. 1 S e c t i o n 2241 is the proper vehicle used to attack the manner in which a sentence is b e i n g executed, and Section 2255 is the proper means of attacking errors that occurred

28 U.S.C. § 2255, provides in pertinent part, "A second or successive must be certified as provided in section 2244 by a panel of the appropriate court of appeals. . ."
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d u r i n g or before sentencing.2 Ojo v. INS, 106 F.2d 680, 683 (5th Cir.1997). Petitioner's claim for habeas corpus relief rests entirely upon the premise that his s e n t e n c es are invalid. The petition is devoid of any claim solely directed to the manner in w h i c h the sentences are being executed. He expressly seeks that his sentences be vacated a n d set aside as a result of events which occurred prior to and during his sentencing hearings. " A petition under § 2241 attacking custody resulting from a federally imposed s e n t e n c e may be entertained only where the petitioner establishes that the remedy provided f o r under [28 U.S.C.] §2255 is 'inadequate or ineffective to test the legality of his detention.'" C o x v. Warden, Federal Detention Center, 911 F.2d 1111 (5th Cir. 1990) citing McGhee v. Han berry, 604 F.2d 9, 10 (5th Cir. 1979). Petitioner has not made any allegations which would lead this court to conclude that t h e remedy under Section 2255 is an inadequate or ineffective means for challenging his

This court is not the proper forum for such a claim inasmuch as a Section 2255 motion should be filed in the court where the criminal conviction and sentence were imposed. A motion to vacate sentence is ordinarily presented to the judge who presided at the original conviction and sentencing. Blackledge v. Allison, 431 U.S. 63, 74, 97 S.Ct. 1621, 52 L.Ed.2d 136 (1977). 28 U.S.C. §2255 provides, in pertinent part,
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A prisoner in custody under sentence of a court established by Act of Congress 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 that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence. (emphasis added).

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d e t e n ti o n . The only basis for such a conclusion would be that he has already filed an u n s u c c e s s fu l Section 2255 motion. However, the Fifth Circuit has recently held that "a prior u n s u c c e s s fu l §2255 motion, or the inability to meet the AEDPA's second or successive requ ireme nt, does not make §2255 inadequate or ineffective." Jeffers v. Chandler, 234 F.3d 277, 280 (5 th Cir. 2000); Tolliver v. Dobre, 211 F.3d 876, 878 (5 th Cir. 2000). Thus, the undersigned is unwilling to find that the remedy afforded under Section 2 2 5 5 is inadequate or ineffective to test the legality of Petitioner's custody or that this court ma y properly entertain the present application under Section 2241. Accordingly, It is recommended this suit be dismissed without prejudice for failure to obtain prior a u t h o r iz a t io n from the United States Court of Appeals for the Ninth Circuit as set forth under S e c t i o n s 2255 and 2244. O B J E C T IO N S U n d e r the provisions of 28 U.S.C. § 636(b)(1)(C) and Fed. R. Civ. P. 72(b), parties a g g r i e v ed by this recommendation have ten (10) business days from service of this Report a n d Recommendation to file specific, written objections with the Clerk of Court, unless an e x t e n s io n of time is granted under Fed. R. Civ. P. 6(b). A party may respond to another party's objection within ten (10) days after being served with a copy thereof. Counsel are d i r e c te d to furnish a courtesy copy of any objections or responses to the District Judge at the t i m e of filing.

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A party's failure to file written objections to the proposed findings, conclusions and r e c o m m e n d a t i o n s set forth above, within ten (10) days after being served with a copy shall b a r that party, except upon grounds of plain error, from attacking, on appeal, the proposed f a c t u a l findings and legal conclusions that were accepted by the district court and that were n o t objected to by the aforementioned party. See Douglas v. U.S.A.A., 79 F.3d 1415 (5th Cir . 1996) (en banc). THUS DONE AND SIGNED in Chambers at Shreveport, Louisiana, this 30th day o f March, 2009.

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