Suttle v. Upton

Filing 11

ORDER ADOPTING REPORT AND RECOMMENDATION 9 of Magistrate Judge Suzanne Mitchell...the court dismisses the petition without prejudice upon filing for lack of jurisdiction. Signed by Honorable Joe Heaton on 5/27/2016. (cla)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
DAVID LEON SUTTLE,
Petitioner,
vs.
JODY UPTON, Warden, FCI
El Reno,
Respondent.

)
)
)
)
)
)
)
)
)

NO. CIV-16-0404-HE

ORDER
Petitioner David Leon Suttle, a federal inmate appearing pro se, filed this action
pursuant to 28 U.S.C. § 2241 seeking habeas relief. He alleges that his sentence for his
2007 felon-in-possession of a firearm conviction in the Western District of Texas was
improperly enhanced under the Armed Career Criminal Act’s residual clause. Consistent
with 28 U.S.C. §636(b)(1)(B), (C), the matter was referred to Magistrate Judge Suzanne
Mitchell, who recommends that the petition be dismissed upon filing for lack of
jurisdiction. See Rule 4, Rules Governing 2254 Proceedings.
In her Report and Recommendation the magistrate judge discussed the different
purposes served by petitions for relief filed under § 2241 and§ 2255. Because petitioner
failed to show that the remedy provided in § 2255 was “inadequate or ineffective to test
the legality of his detention,” 28 U.S.C. § 2255(e), the magistrate judge concluded he
could not resort to § 2241 to challenge his conviction.

However, she determined

petitioner could seek authorization from the Fifth Circuit Court of Appeals to file a

second or successive § 2255 motion,1 so long as he did so within the one year period
prescribed by 28 U.S.C. § 2255(f)(3). The magistrate judge noted that the one year
period began to run on June 26, 2015. See Doc. #9, p. 6 n. 2.
Petitioner disagrees that the court lacks jurisdiction to hear his § 2241 habeas
claim. His arguments are not persuasive.
Accordingly, the court ADOPTS the report and recommendation of Magistrate
Judge Mitchell and DISMISSES the petition without prejudice upon filing for lack of
jurisdiction.
IT IS SO ORDERED.
Dated this 27th day of May, 2016.

1

Petitioner previously sought relief under § 2255. See Doc. #1, p. 4.
2