Opinion
NO. 3-04-CV-2070-N.
October 1, 2004
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Petitioner Arturo Alvarado Loredo, 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 Georgia charged petitioner with one count of illegal reentry after deportation in violation of 8 U.S.C. § 1326. Petitioner plead guilty and was sentenced to 51 months confinement. United States v. Alvarado-Loredo, No. 01-01-CR-236-BBM. His conviction and sentence were affirmed on direct appeal. United States v. Alvarado-Loredo, No. 02-10354 (11th Cir. Nov. 27, 2002). Petitioner now seeks federal habeas relief pursuant to 28 U.S.C. § 2241. In his sole ground for relief, petitioner contends that he is actually innocent because his mother was born in the United States which makes him a citizen of this country. Process has been withheld pending a preliminary screening of the motion.
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.In an attempt to show that section 2255 is an inadequate or ineffective remedy, petitioner argues that he only recently discovered that his mother was born in the United States. However, this explanation fails to satisfy either prong of the Reyes-Requena savings clause test. The fact that petitioner may be barred from filing a section 2255 motion by the AEDPA statute of limitations does not render section 2255 inadequate or ineffective. See United States v. Lurie, 207 F.3d 1075, 1077 (8th Cir. 2000).
To the extent petitioner maintains that the AEDPA limitations period does not begin to run until he discovered that his mother was a United States citizen, such an argument can be made in his section 2255 motion. See 28 U.S.C. § 2255 (one-year statute of limitations begins to run from "the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence").
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 Georgia, 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.