Foster v. United States of America et al

Filing 3

Memorandum of Opinion and Order signed by Judge James S. Gwin on 2/2/10. As set forth in this entry, habeas corpus relief under 28 USC Sec. 2241 is not available to petitioner and the petition is denied. (Related Doc. 1 ) (M,G)

Foster v. United States of America et al

Doc. 3

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO EASTERN DIVISION DERRICK L. FOSTER, Petitioner, v. UNITED STATES OF AMERICA, et al., Respondent. ) ) ) ) ) ) ) ) ) ) CASE NO. 1:09 CV 2907 JUDGE JAMES S. GWIN MEMORANDUM OF OPINION AND ORDER

On December 16, 2009, petitioner pro se Derrick L. Foster filed the above-captioned habeas corpus action under 28 U.S.C. § 2241. Foster challenges his conviction and the sentence imposed on him in this court, on the ground that there was a lack of jurisdiction to prosecute him. For the reasons stated below, the

petition is denied and this action is dismissed. Habeas corpus petitions brought pursuant to 28 U.S.C. § 2241 address the execution of a sentence, while motions filed pursuant to 28 U.S.C. § 2255 test the validity of a judgment and sentence. Capaldi v. Pontesso, 135 F.3d 1122, 1123 (6th Cir.

1998)(citing United States v. Jalili, 925 F.2d 889, 893 (6th Cir. 1991)). By enacting section 2255, Congress essentially superseded Larry

the traditional habeas corpus remedy for federal prisoners.

Dockets.Justia.com

W. Yackle, Postconviction Remedies, § 31 (1981). provides in pertinent part:

Section 2255

[a]n application for a 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, or that such court has denied him relief, unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of his detention. 28 U.S.C. § 2255. The terms "inadequate" or "ineffective" do not

mean that habeas corpus relief is available whenever a federal prisoner faces a substantive or procedural barrier to § 2255 relief such as the Antiterrorism and Effective Death Penalty Act of 1996, Triestman v. United States, 124 F.3d 361, 376 (2d Cir. 1997), or denial of a previously filed section 2255 motion. Hanberry, 604 F.2d 9, 10 (5th Cir. 1979). McGhee v.

Rather, habeas corpus

remains available when the failure to allow some form of collateral review would raise serious questions as to section 2255's

constitutionality.

Triestman, 124 F.3d at 377.

The petitioner

bears the burden of proving that the section 2255 remedy is inadequate or ineffective. James S. Liebman, Randy Hertz, Federal

Habeas Corpus Practice and Procedure § 41.2b at 1188 (2d ed. 1994) (citing Thompson v. Smith, 719 F.2d 938, 940 (8th Cir. 1983); McGhee v. Hanberry, 604 F.2d 9, 10 (5th Cir. 1979)). As petitioner clearly challenges his conviction and the imposition of his sentence rather than its execution, and as there is no reasonable suggestion that the § 2255 remedy is "inadequate" or "ineffective", habeas corpus relief under 28 U.S.C. § 2241 is 2

unavailable. Accordingly, the petition is denied and this action is dismissed pursuant to 28 U.S.C. § 2243. The court certifies,

pursuant to 28 U.S.C. § 1915(a)(3), that an appeal from this decision could not be taken in good faith. IT IS SO ORDERED.

Dated: February 2, 2010

s/ James S. Gwin JAMES S. GWIN UNITED STATES DISTRICTJUDGE

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