Kokoski v. Fox
Filing
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MEMORANDUM OPINION Regarding Transfer. Petitioner is challenging the action of the Ohio court in revoking his term of supervised release. As this court is without jurisdiction to entertain such claims, the currect filing should be transferred to the Ohio court so petitioner will not be prejudiced with respect to limitations issues concerning the filing of his claims. Signed by Magistrate Judge Zack Hawthorn on 3/5/12. (mrp, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
BEAUMONT DIVISION
MICHAEL KOKOSKI
§
VS.
§
JOHN FOX
§
CIVIL ACTION NO. 1:10cv591
MEMORANDUM OPINION REGARDING TRANSFER
Petitioner Michael Kokoski, an inmate confined at the Federal Correctional Complex in
Beaumont, Texas, proceeding pro se, brings this petition for writ of habeas corpus pursuant to 28
U.S.C. § 2241.
Discussion
Petitioner filed this petition seeking release from custody based on the alleged denial of due
process during the revocation of his supervised release in the United States District Court for the
Southern District of Ohio. Petitioner claims he was denied the right to confront and cross-examine
witnesses, was not permitted to call any witnesses on his own behalf, and was denied the right to a
neutral and detached hearing body.
Analysis
Title 28 U.S.C. § 2241(a) provides that "[w]rits of habeas corpus may be granted by the
Supreme Court, any justice thereof, the district courts and any circuit judge within their respective
jurisdictions." Section 2241 is correctly used to attack the manner in which a sentence is executed.
Tolliver v. Dobre, 211 F.3d 876, 877 (5th Cir. 2000). A petition filed under § 2241 which attacks
errors that occurred at trial or sentencing is properly construed as a § 2255 motion. Id. at 877-78.
However, there is one exception to this general rule. A prisoner may use Section 2241 as the vehicle
for attacking the conviction if it appears that the remedy by motion "is inadequate or ineffective to
test the legality of his detention." 28 U.S.C. § 2255.
Section 2255 provides the primary means of collaterally attacking a federal conviction and
sentence. Tolliver, 211 F.3d at 877. Relief under this section is warranted for errors that occurred
at trial or sentencing. Cox v. Warden, Fed. Detention Ctr., 911 F.2d 1111, 1113 (5th Cir. 1990).
As petitioner attacks alleged errors occurring during the revocation of his supervised release, his
filing should be construed as a motion to vacate, set aside or correct sentence. However, because
petitioner was convicted in the United States District Court for the Southern District of Ohio, this
court lacks jurisdiction to entertain a § 2255 motion.
A petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 is not a substitute for a
motion to vacate sentence pursuant to 28 U.S.C. § 2255, and the burden of coming forward with
evidence to show the inadequacy or ineffectiveness of a motion under § 2255 rests squarely on the
petitioner. Jeffers v. Chandler, 253 F.3d 827 (5th Cir. 2001). A prior unsuccessful § 2255 motion,
or the inability to meet AEDPA's "second or successive" requirement, does not make § 2255
inadequate or ineffective. Tolliver, 211 F.3d at 878.
The United States Court of Appeals for the Fifth Circuit has set forth the factors that must
be satisfied for a petitioner to file a § 2241 petition in connection with § 2255's savings clause. See
Reyes-Requena v. United States, 243 F.3d 893 (5th Cir. 2001). In Reyes-Requena, the Fifth Circuit
held that "the savings clause of § 2255 applies to a claim (i) that is based on a retroactively
applicable Supreme Court decision which establishes that the petitioner may have been convicted
of a nonexistent offense and (ii) that was foreclosed by circuit law at the time when the claim should
have been raised in the petitioner's trial, appeal, or first § 2255 motion." Id. at 904.
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Here, petitioner's claim does not amount to a claim that he was convicted of "a nonexistent
offense" as required by the actual innocence prong of Reyes-Requena. Accordingly, petitioner does
not meet the criteria required to support a claim under the savings clause of § 2255. Additionally,
petitioner makes clear in his previous objections that he is challenging the actions of “the supervising
tribunal which reimprisoned him without due process of law.” Petitioner’s Objections at 2 (docket
entry no. 10). Petitioner is not challenging the manner in which the Bureau of Prisons is executing
his sentence. Instead, he is challenging the action of the Ohio court in revoking his term of
supervised release. As this court is without jurisdiction to entertain such claims, the current filing
should be transferred to the Ohio court so petitioner will not be prejudiced with respect to limitations
issues concerning the filing of his claims.
Under 28 U.S.C. § 1404(a), for the convenience of parties and witnesses and in the interest
of justice, a district court may transfer any civil action to any other district or division where it could
have been brought. Such a transfer may be done sua sponte and is reviewable only for an abuse of
discretion. Mills v. Beech Aircraft Corp., 886 F.2d 758, 761 (5th Cir. 1989).
After considering the circumstances, the court has determined that the interests of justice
would best be served if this petition were transferred to the district in which the petitioner was
convicted rather than dismissed for lack of jurisdiction. An Order of Transfer so providing shall be
entered in accordance with this Memorandum Order.
SIGNED this 5th day of March, 2012.
_________________________
Zack Hawthorn
United States Magistrate Judge
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