Evans v. Farley

Filing 5

Memorandum Opinion and Order: The request to proceed in forma pauperis is granted, the Petition is denied, and this action is dismissed pursuant to 28 U.S.C. Section 2243. The Court certifies, pursuant to 28 U.S.C. Section 1915(a)(3), that an appeal from this decision could not be taken in good faith. (Related Doc # 1 ). Judge Sara Lioi on 5/11/2011. (P,J)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

TIAYON KARDELL EVANS,
PETITIONER,
vs.

ROBERT L. FARLEY,

RESPONDENT.

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CASE NO. 4:11cv649
JUDGE SARA LIOI

MEMORANDUM OF OPINION
AND ORDER

On March 30, 2011, Petitioner pro se Tiayon Kardell Evans filed the abovecaptioned in forma pauperis habeas corpus action under 28 U.S.C. ' 2241. Petitioner
challenges his conviction and the sentence imposed on him in the United States District Court
for the Eastern District of Virginia, on the ground that the federal district court lacked
jurisdiction because the State of Virginia did not cede its authority over its territory to the
federal government. 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 § 2255, Congress
essentially superseded the traditional habeas corpus remedy for federal prisoners. Larry W.
Yackle, Postconviction Remedies, ' 31 (1981). Section 2255 provides in pertinent part:
[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(e). 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 § 2255
motion. McGhee v. Hanberry, 604 F.2d 9, 10 (5th Cir. 1979). 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, 604
F.2d at 10).
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
unavailable.
Accordingly, the request to proceed in forma pauperis is granted, 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: May 11, 2011
HONORABLE SARA LIOI
UNITED STATES DISTRICT JUDGE