Middleton v. Schult
Opinion of the Court
SUMMARY ORDER
On April 12, 2007, petitioner Terry Middleton, pro se, filed a petition for a writ of habeas corpus under 28 U.S.C. § 2241 in the District Court for the Northern District of New York.
We review de novo a district court’s dismissal of a 28 U.S.C. § 2241 habeas petition for lack of subject matter jurisdiction. See Cephas v. Nash, 328 F.3d 98, 103 (2d Cir. 2003). As the District Court noted in its May 1, 2007 Memorandum-Decision and Order, a § 2241 petition is the proper means to challenge the execution of a federal prisoner’s sentence, not the imposition of a sentence. Appellee App. at 22. See also Adams v. United States, 372 F.3d 132, 135 (2d Cir. 2004). Generally, § 2255 is the appropriate vehicle for a federal prisoner to challenge a sentence’s imposition on the ground that it was “imposed in violation of the U.S. Constitution or the laws of the United States.” Id. at 134. However, there is a limited exception to this general rule; the “savings clause” of § 2255 permits prisoners to file a petition pursuant to § 2241 for challenges to the imposition of a sentence where § 2255 is “inadequate or ineffective” and “failure to allow for collateral review would raise serious constitutional questions.” Triestman v. United States, 124 F.3d 361, 377 (2d Cir. 1997).
Here, Middleton argues that he could not have been “reasonably expected” to raise his sentencing enhancement claim earlier, before the Eleventh Circuit held that a conviction is “previous” to a § 922(g) offense only if the conviction occurred before the violation of § 922(g) in Richardson. Appellee’s App. at 15 (citing Richardson, 166 F.3d at 1362). A lack of case law to support a claim, however, does not render that claim unavailable. Indeed, the Eleventh Circuit’s decision in Richardson came about precisely because a defendant in Middleton’s position raised this particular claim, which the Court noted was a matter of first impression. See Richardson, 166 F.3d at 1361. Thus, we conclude that Middleton’s sentencing enhancement claim could have been pursued earlier and his § 2241 petition should be dismissed for lack of jurisdiction.
CONCLUSION
The judgment of the District Court is AFFIRMED.
. Though petitioner was tried and sentenced in the Northern District of Florida, he was incarcerated at the Federal Correctional Institution at Ray Brook, New York in April 2007, Appellee App. at 20, and thus properly filed his habeas petition under 28 U.S.C. § 2241 in the Northern District of New York. On May 29, 2007, petitioner notified the District Court that he had been transferred to the McKean Federal Correctional Facility in Lewis Run, Pennsylvania. Because jurisdiction attaches on the initial filing for habeas corpus relief, see Francis v. Rison, 894 F.2d 353, 354 (9th Cir. 1990), we maintain jurisdiction in the immediate case.
. Section 2255 provides in relevant part:
An application for a writ of habeas corpus [on] 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, ¶ 5.
Reference
- Full Case Name
- Terry MIDDLETON v. Deborah SCHULT
- Cited By
- 5 cases
- Status
- Published