Opinion
Case No. 2:04-CV-307 TS.
June 29, 2004
ORDER GRANTING GOVERNMENT'S MOTION TO DISMISS, CONSTRUING PETITION PURSUANT TO 28 U.S.C. § 2241 AND TRANSFERRING CASE.
This matter is before the Court on the government's Motion to Dismiss [Petitioner's] § 2255 Motion Based on Lack of Jurisdiction, filed May 24, 2004. Petitioner is represented by counsel, and this matter has been fully briefed. The Court, having reviewed the pleadings and the file, and being otherwise fully informed, will GRANT the government's Motion and TRANSFER this case, as set forth below.
BACKGROUND
Petitioner Anthony James Bolton is incarcerated at the federal detention center in Florence, Colorado, serving a 30-month sentence imposed upon him in Case No. 2:01-CR-628 TS. Petitioner filed the instant case, pursuant to 28 U.S.C. § 2255, challenging the fact that he was not given credit for time served in state custody.
On May 24, 2004, the government filed its Motion to Dismiss [Petitioner's] § 2255 Motion Based on Lack of Jurisdiction. Petitioner filed his response on May 27, 2004, and the government replied on June 2, 2004.
Petitioner's pleading is styled, "Defendant's Objection to Government's Motion to Dismiss."
DISCUSSION
Although it declines to address the merits of the Petition, the Court finds that this case is properly brought pursuant to § 2241, and hence must be transferred to the appropriate district court. Section 2241(a) provides that a "[w]rit of habeas corpus may be granted by [one of the federal courts] within their respective jurisdictions" (emphasis added). The Tenth Circuit has clarified that ". . . a petition under 28 U.S.C. § 2241 attacks the execution of a sentence rather than its validity and must be filed in the district where the prisoner is confined."Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir. 1996) (emphasis added). The statute further provides that, if a petition is brought outside of the jurisdiction "wherein the restraint complained of is had," the Court "may transfer the application for hearing and determination to the district court having jurisdiction to entertain it." 28 U.S.C. § 2241(b).
Petitioner concedes that the Petition should have been filed under § 2241, as opposed to § 2255. However, contrary to Petitioner's arguments, this Court does not have concurrent jurisdiction, as there is only one federal district within the boundaries of the State of Utah. See § 2241(d). The statute is clear that the relief sought by Petitioner must be sought in the District wherein he is detained — in this case, the District of Colorado.
Based upon the above, it is hereby
ORDERED that the government's Motion to Dismiss is GRANTED as to Petitioner's § 2255 Motion; it is further
ORDERED that the Petition is construed as being brought pursuant to 28 U.S.C. § 2241; it is further
ORDERED that this case be TRANSFERRED to the District of Colorado for resolution; it is further
ORDERED that the Clerk of Court close this case forthwith.