Opinion
EP-00-CA-305-DB
February 16, 2001
TRANSFER ORDER
BEFORE THE COURT is Petitioner Pedro Ivan Rivera's Application for Writ of Habeas Corpus (the "Writ Petition"), filed on July 14, 2000, in the United States District Court for the District of Columbia, claiming jurisdiction pursuant to the Suspension Clause of the United States Constitution. On August 3, 2000, treating the Writ Petition as one brought under 28 U.S.C. § 2241, the District of Columbia court transferred the Writ Petition to this Court because such a petition is properly filed in the district where the petitioner is incarcerated, and Petitioner currently is incarcerated within this district in Anthony, Texas.
Petitioner claims that he is incarcerated illegally because his 1998 conviction in the Northern District of Texas (Dallas Division) for tax evasion is unconstitutional. Section 2241 is not a proper means of attacking errors that occurred during or before sentencing, including the constitutionality of a statute. See Ojo v. INS, 106 F.3d 680, 683 (5th Cir. 1997). Rather, under these circumstances, § 2241 is proper only to attack the manner in which a sentence is being executed, see id, unless a petitioner can show that "`the remedy provided for under 28 U.S.C. § 2255 is inadequate or ineffective to test the legality of his detention.'" Hooker v. Sivley, 187 F.3d 680, 682 (5th Cir. 1999) (explaining § 2241 "savings clause") (quoting Cox v. Warden, Fed. Detention Ctr., 911 F.2d 1111, 1113 (5th Cir. 1987)). Here, Petitioner complains that the tax laws under which he was convicted are unconstitutional and, hence, his incarceration pursuant to conviction under those laws is unconstitutional. In other words, Petitioner claims that the Court which imposed his sentence was without jurisdiction to impose such sentence. That claim is properly brought as a motion to vacate, set aside or correct sentence pursuant to § 2255.
In a September 13, 2000, filing with the District of Columbia court, Petitioner described his claim as follows: "There is no Act of Congress that authorizes imprisonment for tax evasion in the absence of a tax imposed by Title 26 of the United States Code. Yet, I have been so imprisoned." Petitioner filed the Writ Petition in the District of Columbia because, he contends, that is where the tax laws were enacted.
A motion brought under § 2255 must be filed with "the court that imposed the sentence." § 2255; see also Solsona v. Warden, F.C.I., 821 F.2d at 1129, 1131-32 (5th Cir. 1987). This Court did not impose Petitioner's sentence. Although the Court could dismiss Petitioner's cause for failure of jurisdiction, see Home Builders, Ass'n v. City of Madison, Miss., 143 F.3d 1006, 1010 (5th Cir. 1998), the Court finds that the ends of justice and judicial efficiency will be served if the Court transfers this cause to the court that imposed the allegedly illegal sentence. Thus, after due consideration, the Court is of the opinion that the instant Writ Petition should be transferred to the Northern District of Texas (Dallas Division).
Accordingly, IT IS HEREBY ORDERED that Petitioner Pedro Ivan Rivera's Petition for Writ of Habeas Corpus is TRANSFERRED to the United States District Court for the Northern District of Texas.