Opinion
No. 3-04-CV-2107-P.
October 5, 2004
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Petitioner Ismael Vasquez Fonseca, an inmate at FCI-Seagoville, has filed an application for writ of habeas corpus pursuant to 28 U.S.C. § 2241. For the reasons stated herein, the application should be construed as a motion to correct, vacate, or set aside sentence and dismissed for lack of jurisdiction.
I.
A federal grand jury in the Northern District of Mississippi charged petitioner with illegal reentry after deportation by an aggravated felon in violation of 8 U.S.C. § 1326(a)(1) (b)(2). Petitioner plead guilty and was sentenced to 57 months confinement. United States v. Vasquez-Fonseca, No. 01-03-CR-113-001. His conviction and sentence were affirmed on direct appeal. United States v. Vasquez-Fonseca, No. 04-60237 (5th Cir. Sept. 10, 2004). Petitioner now seeks federal habeas relief pursuant to 28 U.S.C. § 2241. His sole claim is that defense counsel failed to discover that petitioner's father legally resided in the United States for at least 17 years prior to his birth, which makes petitioner a citizen of this country. Process has been withheld pending a preliminary screening of the habeas petition.
II.
As a threshold matter, the court must determine whether this claim is properly raised in a section 2241 habeas petition. A collateral attack on a federal criminal conviction is generally limited to a motion to correct, vacate or set aside sentence under 28 U.S.C. § 2255. Tolliver v. Dobre, 211 F.3d 876, 877 (5th Cir. 2000). An application for writ of habeas corpus brought under 28 U.S.C. § 2241 is properly construed as a section 2255 motion if it seeks relief based on errors that occurred at trial or sentencing. Id. at 877-78. However, habeas relief may be appropriate when the remedy provided under section 2255 is inadequate or ineffective. Jeffers v. Chandler, 253 F.3d 827, 830 (5th Cir.), cert. denied, 122 S.Ct. 476 (2001), citing 28 U.S.C. § 2255. A petitioner must satisfy two factors to show inadequacy. First, the claim must be "based on a retroactively applicable Supreme Court decision which establishes that petitioner may have been convicted of a nonexistent offense." Id., quoting Reyes-Requena v. United States, 243 F.3d 893, 904 (5th Cir. 2001). Second, the claim must have been "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. Neither requirement is satisfied here.Having determined that this action must be brought under section 2255, the court now turns to the issue of jurisdiction. A federal prisoner must seek habeas relief from the court which sentenced him. 28 U.S.C. § 2255; Pack v. Yusuff, 218 F.3d 448, 451 (5th Cir. 2000), citing Cox v. Warden, Federal Detention Center, 911 F.2d 1111, 1113 n. 2 (5th Cir. 1990). This filing requirement is jurisdictional. United States v. Mares, 868 F.2d 151, 152 (5th Cir. 1989). Because petitioner was convicted and sentenced in the Northern District of Mississippi, jurisdiction is proper only in that district.
RECOMMENDATION
Petitioner's application for writ of habeas corpus should be construed as a motion to correct, vacate, or set aside sentence and dismissed for lack of jurisdiction.