Bolden v. United States

Filing 80

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that the movant's motion for expedited review [Doc. No. 43] is denied. Signed by Honorable Carol E. Jackson on 3/9/12. (KXS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
ROBERT BOLDEN, SR.,
Movant,
vs.
UNITED STATES OF AMERICA,
Respondent.

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Case No. 4:10-CV-2288 (CEJ)

MEMORANDUM AND ORDER
Robert Bolden, Sr., has filed a motion to vacate, set aside, or correct sentence
pursuant to 28 U.S.C. § 2255. Presently before the Court is a motion for expedited review
of alleged practices by the United States Bureau of Prisons in providing medical treatment
to movant.

Bolden, who suffers from diabetes, is presently confined in a BOP

penitentiary in Terre Haute, Indiana. He alleges that BOP, in violation of its own policies,
has not provided him the nutrition and medical monitoring required for controlling the
disease. As a result, he faces a risk of serious injury that will impede his ability to pursue
his motion to vacate and thereby deny him access to the courts. Bolden seeks an order
directing BOP to comply with its guidelines for treatment of diabetic prisoners, to provide
him proper medical and dietary care, and to transfer him to a medical facility. He also
asks for discovery and an evidentiary hearing concerning the medical treatment he has
received while in BOP custody.
It is well-established that a challenge to the execution of a sentence is not
cognizable in a motion to vacate under 28 U.S.C. § 2255. Matheny v. Morrison, 307 F.3d
709, 711-12 (8th Cir. 2002) (challenge to BOP’s schedule for inmates’ payment of
monetary penalties not cognizable under § 2255); Bell v. United States, 48 F.3d 1042,
1043-1044 (8th Cir. 1995)(claim for credit for time served not cognizable under § 2255);
Zabel v. U.S. Attorney, 829 F.2d 15, 17-18 (8th Cir. 1987)(challenge to application of

parole guidelines not cognizable under § 2255). It is evident from the relief Bolden
requests (i.e., compliance with BOP’s treatment guidelines, coordination of insulin and
meals, transfer to a medical facility) that his motion presents a challenge to the execution
of his sentence, not a challenge to the validity of his sentence. See Nichols v. Symmes,
553 F.3d 647, 649 (8th Cir. 2009)(appropriate to consider relief sought in determining
whether petitioner was attacking underlying sentence or attacking execution of the
sentence).

Neither the allegation of denial of access to the courts nor the requests for

a hearing and discovery will suffice to make the claims in his motion cognizable under §
2255.
The proper vehicle for challenging the execution of a sentence is a petition for
habeas corpus pursuant to 28 U.S.C. § 2241(a). Bell, 48 F.3d at 1043. If Bolden wishes
to pursue his medical care claims in a habeas proceeding, he must file the petition in the
Indiana judicial district where he is incarcerated. United States v. Hutchings, 835 F.2d
185, 187 (8th Cir. 1987)( “a § 2241(a) habeas petition must be filed in the judicial district
within which either the USPC or the prisoner’s custodian is located.”); Bell, 48 F.3d at
1043.
This Court lacks jurisdiction to consider the claims raised in Bolden’s motion for
expedited review. Accordingly,
IT IS HEREBY ORDERED that the movant’s motion for expedited review [Doc.
No. 43] is denied.
___________________________________
CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE
Dated this 9th day of March, 2012.

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