Osorio v. Lappin

Full title: ABRAHAM SERRANO OSORIO, Petitioner, v. HARLEY LAPPIN, et al., Respondents

Court: United States District Court, D. Columbia

Date published: Jul 30, 2008

Civil Action No. 08 1347 (D.D.C. Jul. 30, 2008)

Opinion

Civil Action No. 08 1347.

July 30, 2008

MEMORANDUM OPINION

JOHN BATES, District Judge

This matter is before the Court on petitioner's application for a writ of habeas corpus and his application to proceed in forma pauperis. The Court will grant the application to proceed in forma pauperis and dismiss the case for lack of jurisdiction.

Petitioner challenges his conviction on one of two counts following a trial in the United States District Court for the District of Puerto Rico. He alleges ineffective assistance of counsel and argues that conviction on the second count violated the rule in Jones v. United States, 119 S.Ct. 1215 (1999). Such claims must be presented to the sentencing court by motion filed pursuant to 28 U.S.C. § 2255. See Taylor v. United States Board of Parole, 194 F.2d 882, 883 (D.C. Cir. 1952) (attack on the constitutionality of the statute under which defendant was convicted and sentenced is properly pursued by motion under 28 U.S.C. § 2255); Ojo v. Immigration Naturalization Service, 106 F.3d 680, 683 (5^th Cir. 1997) (the sentencing court is the only court with jurisdiction to hear defendant's complaint regarding errors that occurred before or during sentencing). An individual may be excused from pursuing relief under § 2255 only when it "appears that the remedy by motion is inadequate or ineffective to test the legality of his detention." 28 U.S.C. § 2255. Petitioner has not argued that the remedy by motion is ineffective.

Lacking jurisdiction to entertain the habeas petition, the Court will dismiss the case by separate Order issued contemporaneously with this Memorandum Opinion.