Schuholz v. United States of America

Filing 4

REPORT AND RECOMMENDATION by Judge James C. England re 1 Petition for Writ of Habeas Corpus filed by Albert Schuholz, Objections to R&R due by 3/17/2005 (Elayer, Glenda)

Schuholz v. United States of America

Doc. 4

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI SOUTHERN DIVISION

ALBERT SCHUHOLZ, Petitioner, v. UNITED STATES OF AMERICA, et al., Respondents. )

) ) ) ) Civil Action ) No. 05-3073-CV-S-RED-H ) )

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE Petitioner, an inmate confined in the United States Medical Center for Federal Prisoners, petitions this Court for a writ of habeas corpus in which he challenges his sentence. The petition has been referred to the undersigned for preliminary review under 28 U.S.C. § 636(b). Because this Court lacks jurisdiction of petitioner's claims, it will be recommended that he be denied leave to proceed in forma pauperis. As grounds for relief in habeas corpus, petitioner contends that there was a defective indictment against him; that he was falsely sentenced; and that there was a murder plot against him in the Eastern District of Kentucky. The law is clear that a petitioner who seeks to attack the validity of a federal sentence must do so in the sentencing court pursuant to 28 U.S.C. § 2255 unless it appears that the motion is inadequate or ineffective to test the validity of the detention. E.g., Winston v. Mustain, 562 F.2d 565, 566 (8th Cir. 1977). A petitioner has the burden, moreover, of showing that the "inadequate or ineffective" test has been met. Von Ludwitz v. Ralston, 716 F.2d 528, 529 (8th Cir. 1983) (per curiam). Regardless of petitioner's assertions in this case, the action is improperly filed under the provisions

Case 6:05-cv-03073-RED

Document 4

Filed 02/28/2005

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of 28 U.S.C. § 2241. The issues he raises are cognizable, if at all, in the sentencing court, and it is clear that this Court lacks jurisdiction of petitioner's claims. Accordingly, it must be recommended that the petition be dismissed without prejudice. For the foregoing reasons, it is, pursuant to the governing law and in accordance with Local Rule 72.1 of the United States District Court for the Western District of Missouri, RECOMMENDED that petitioner be denied leave to proceed in forma pauperis, and that the petition herein for writ of habeas corpus be dismissed without prejudice.

/s/ James C. England JAMES C. ENGLAND United States Magistrate

Date:

2/28/05

Case 6:05-cv-03073-RED

Document 4

Filed 02/28/2005

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