Summary
dismissing § 2241 petition for lack of jurisdiction and not deciding to construe the § 2241 as a motion under § 2255 since the petitioner's sentencing court was located in another district
Summary of this case from Gonzalez v. U.S.Opinion
No. 4:00-CV-0374-A
January 18, 2001
MEMORANDUM OPINION AND ORDER
Came on for consideration the above-captioned action wherein Swanson Dalton is petitioner and L. E. Fleming, Warden, FMC Fort Worth, is respondent. This purports to be a petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2241. The papers on file reflect, however, that petitioner is seeking relief that must be sought under 28 U.S.C. § 2255. See Pack v. Yusuff, 218 F.3d 448 (5th Cir. 2000). As a general rule, such a petition must be dismissed or construed as a § 2255 motion. Id. at 452. An exception exists if the petitioner establishes that the remedy provided for under § 2255 is inadequate or ineffective. Id.; 28 U.S.C. § 2255. A prior unsuccessful § 2255 motion or the inability to meet the "second or successive" requirement of § 2255 does not make § 2255 inadequate or ineffective. Tolliver v. Dobre, 211 F.3d 876, 878 (5th Cir. 2000)
Petitioner seeks relief because he alleges that his sentence was erroneously enhanced under U.S.S.G. § 3B1.1 (a). Because he is attacking an alleged sentencing error, the appropriate remedy is under § 2255. United States v. Flores, 616 F.2d 840, 842 (5th Cir. 1980). Because petitioner's sentencing court is located in another district, the court is not construing this petition as a motion under § 2255. Instead, the court finds that the petition should be dismissed for want of jurisdiction.
The court ORDERS that the petition in this action be, and is hereby, dismissed for want of jurisdiction.
FINAL JUDGMENT
In accordance with the court's Memorandum Opinion and Order of even date herewith,
The court ORDERS, ADJUDGES, AND DECREES that the petition of Swanson Dalton in this action be, and is hereby, dismissed for want of jurisdiction.