Opinion
22-3276-JWL
07-28-2023
LEVI LOVE, Petitioner, v. DAN SCHNURR, Warden, Hutchinson Correctional Facility, Respondent.
MEMORANDUM AND ORDER
JOHN W. LUNGSTRUM, UNITED STATES DISTRICT JUDGE
This matter is a petition for writ of habeas corpus filed under 28 U.S.C. § 2241. Petitioner is in state custody at the Hutchinson Correctional Facility in Hutchinson, Kansas. The Court granted Petitioner leave to proceed in forma pauperis. On June 30, 2023, the Court entered a Memorandum and Order (Doc. 29) and Judgment (Doc. 30) denying the Petition for writ of habeas corpus. On July 10, 2023, the Court entered a Memorandum and Order (Doc. 34) denying Petitioner's Motion to Alter or Amend Judgment, Motion to Recuse, and Motion for Continuance. This matter is before the Court on Petitioner's Motion for Rehearing (Doc. 35).
Petitioner filed this petition for writ of habeas corpus under 28 U.S.C. § 2241, challenging the calculation of his state sentence. Petitioner's motion for rehearing, however, attacks his underlying criminal conviction. (Doc. 35, at 1-4.) Petitioner argues that he was falsely arrested, he was used as a scapegoat, he has not had an opportunity to bring forth his claim of ineffective assistance of counsel, Petitioner did not meet the description of the suspect, the state court judge was related to a witness, Petitioner was falsely convicted, and his sister's house was illegally searched and her vehicle was illegally searched and seized. Id. at 1-3. Petitioner suggests that he will be filing a civil rights action in the future. Id. at 3. Petitioner states that he is not expecting the Court to reverse, he is merely placing evidence in the record so no one will be able to claim that they did not know. Id.
This case was brought under § 2241 and dealt with the calculation of Petitioner's sentence. A § 2241 petition is appropriate when a prisoner challenges the execution of his sentence rather than the validity of his conviction or sentence. McIntosh v. U.S. Parole Comm'n, 115 F.3d 809, 811 (10th Cir. 1997). Petitioner's motion for rehearing sets forth arguments regarding his state criminal proceedings and conviction, which must be brought under 28 U.S.C. § 2254. Nothing in Petitioner's motion warrants reconsideration of the Court's denial of his § 2241 petition.
This Court previously denied Petitioner's § 2254 petition. See Love v. Roberts, Case No. 05-3481, 2007 WL 2013573 at *1 (D. Kan. 2007), reh'g denied 2007 WL 3353706 (D. Kan. 2007), certificate of appealability denied 259 Fed.Appx. 58 (10th Cir. Dec. 6, 2007), cert. denied 552 U.S. 1271 (2008), reh'g denied 553 U.S. 1077 (2008).
IT IS THEREFORE ORDERED BY THE COURT that Petitioner's Motion for Rehearing (Doc. 35) is denied. This case remains closed.
IT IS FURTHER ORDERED that the Clerk is directed to redact the social security number on Doc. 35-1, at 4.
IT IS SO ORDERED.