Gordon v. Yancey

Full title: EDDIE LEE GORDON, Petitioner, v. WARDEN RUTH YANCEY, et al., Respondents

Court: United States District Court, D. South Carolina, Greenville Division

Date published: Nov 28, 2005

Civil Action No. 6:05-2929-HFF-WMC (D.S.C. Nov. 28, 2005)

Opinion

Civil Action No. 6:05-2929-HFF-WMC.

November 28, 2005

ORDER

HENRY FLOYD, District Judge

This is a petition for habeas corpus filed pursuant to 28 U.S.C. § 2241. Petitioner is proceeding pro se.

On November 1, 2005, the Magistrate Judge filed a Report in which he recommended that this petition be dismissed without prejudice. Petitioner's objections were due on November 18, 2005. On November 22, 2005, the Court entered an Order adopting the Report and noting that Petitioner had failed to file objections. On November 23, 2005, the Court received Petitioner's objections. Because the Court received Petitioner's objections after it entered an order adopting the Report and dismissing the case, the Court will treat these objections as a motion to alter or amend under Fed.R.Civ.P. 59(e).

Petitioner's objections attack the Magistrate Judge's recommendation that this petition be dismissed, but they fail to offer any convincing arguments against the Magistrate's conclusions. Specifically, Petitioner fails to overcome the Magistrate Judge's conclusion that his claims must be brought under 28 U.S.C. § 2255 rather than § 2241. Even if the Court accepts Petitioner's assertion that he is not making an Apprendi-type claim, Petitioner's claim is nothing more than an attack on the jurisdiction of the trial court to impose a sentence upon conviction. In fact, Petitioner recognizes that his claims amount to a jurisdictional attack. (Objections 4-5.) Yet, as the Magistrate noted, challenges to the court's jurisdiction to impose sentence must be brought under § 2255. (Report 4-5.) Therefore, the Court concludes that this petition for habeas relief under § 2241 is not tenable.

Thus, after a thorough review of the record in this petition, the Court finds that, even under the liberal pleading standard afforded to pro se litigants, this petition must be dismissed.¹ Accordingly, the Court OVERRULES Petitioner's objections and declines to alter or amend its Order of November 22, 2005.

1 The Court reviews the Magistrate Judge's Report de novo. See Order of November 22, 2005.

IT IS SO ORDERED.