Conner v. United States of America

Filing 4

ORDER DISMISSING CASE signed by Judge Rudolph T. Randa on 6/20/2013 DENYING 1 MOTION to Vacate, Set Aside or Correct Sentence (2255). Petition DISMISSED. The Court will not issue certificate of appealability. (cc: all counsel, via US mail to Terry Conner at Victorville Federal Correctional Institution)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
UNITED STATES OF AMERICA,
Plaintiff,
-vs-

Case No. 85-CR-176
13-C-671

TERRY CONNER,
Movant.

DECISION AND ORDER

As to Count I of a superseding indictment, Terry Conner was sentenced to life
in prison by Senior Judge John W. Reynolds on May 16, 1988. Just over 25 years
later, Conner filed this action which he labels a petition for a writ of habeas corpus
pursuant to a variety of jurisdictional handles: 28 U.S.C. §§ 1651(a) (All Writs Act),
2241 (General Habeas), and 2255 (Motions Attacking Sentence by Prisoner in Federal
Custody).
Conner argues that a life sentence under Count I was “not available” pursuant
to 18 U.S.C. § 4205(a) (now-repealed), which provides that “[w]henever confined and
serving a definite term or terms of more than one year, a prisoner shall be eligible for
release on parole after serving one-third of such term or terms or after serving ten
years of a life sentence or of a sentence of over thirty years, except to the extent
otherwise provided by law.” This statutory provision does not preclude the imposition
of a life sentence. To be clear, Conner does not argue that he was improperly denied

parole, only that the original sentence was unlawful.

See, e.g., United States v.

Kennedy, 851 F.2d 689, 690 (3d Cir. 1988) (“challenge to the Parole Commission’s
execution of a sentence is properly raised in a habeas corpus petition under” § 2241);
Hajduk v. United States, 764 F.2d 795, 796 (11th Cir. 1985); United States v. McGee,
No. 91 CR 477-2, 1997 WL 126993, at *1 (N.D. Ill. Mar. 13, 1997). For that reason,
the Court construes this matter as an action under Section 2255, which will be denied
both because it is without merit and because it is untimely. 28 U.S.C. 2244(d)(1).
Conner’s petition is DENIED.

The Clerk of Court is directed to enter

judgment accordingly. The Court will not issue a certificate of appealability. Rule
11(a), Rules Governing Section 2255 Proceedings.
Dated at Milwaukee, Wisconsin, this 20th day of June, 2013.

BY THE COURT:

__________________________
HON. RUDOLPH T. RANDA
U.S. District Judge

-2-