Movant is a federal prisoner, without counsel, seeking post-conviction relief. He has filed a petition for a writ of habeas corpus seeking relief under 28 U.S.C. § 2241. For the reasons explained below, the court construes the petition as a motion filed pursuant to 28 U.S.C. § 2255, and recommends that it be dismissed with leave to amend.
Movant has included only skeletal facts. He alleges that he was convicted pursuant to a guilty plea. Motion, at 2. However, he does not allege what court sentenced him, when judgment was entered, the offense of which he was convicted, or the sentence he must serve. It appears from the demand for relief (discussed below) that he was sentenced to a term of years followed by a period of supervised release. Motion at 15-16. Movant alleges that he did not appeal the judgment, but he did file a motion to vacate the sentence as authorized by 28 U.S.C. § 2255. Motion, at 3. Movant does allege that he was sentenced "in the 8th Cir. Case No.: 00-130(MJD/ESS)," and asserts that relief under 28 U.S.C. § 2255 was denied on May 29, 2002. Motion at 3, & Attach.*fn1 at 15. The information Movant has provided is inadequate for the court to determine the district of conviction. The court has checked its records and finds that this court did not assign the referenced case number to an action under section 2255. There is no indication that Movant was convicted in this court.
Movant alleges several grounds for relief. The allegations are unclear, but the court gleans the following claims: (1) that the movant's sentence violates the Sixth Amendment as explained in United States v. Booker, 543 U.S. 220, 244 (2005); (2) that the term of supervised release violates the Double Jeopardy Clause of the Fifth Amendment; (3) that the term of imprisonment followed by supervised release violates the Eighth Amendment's prohibition on cruel and unusual punishments. As relief, movant demands a recalculation of his "release date subtracting the 60 months supervised release time from this 188 month sentence." Attach. at 16.
II. Standards and Analysis
Although Movant styled his request as a petition for habeas corpus under 28 U.S.C. § 2241, he fails to state a claims under that provision. Rather, as discussed below, he appears to be seeking a remedy that is more properly pleaded under 28 U.S.C. § 2255. However, under section 2255 it appears that this court lacks jurisdiction.
Federal prisoners have two remedies available to challenge the fact or duration of their confinement upon the conclusion of direct appeal or the expiration of time to file a direct appeal. These remedies are a petition for a writ of habeas corpus filed under 28 U.S.C. § 2241 and a motion to vacate sentence filed under 28 U.S.C. § 2255. In particular, § 2241(c)(3) provides that,
The writ of habeas corpus shall not extend to a prisoner unless . . . [h]e is in custody in violation of the constitution or laws or treaties of the United States.
Section 2255(a) provides:
A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.
In order to clarify the primacy of § 2255 as the means of federal prisoners to challenge their judgments of conviction and sentence, Congress also enacted subsection (e):
An application for a writ of habeas corpus in behalf of a prisoner who is authorized to apply for relief by motion pursuant to this section, shall not be entertained if it appears that the applicant has failed to apply for relief, by motion, to the court which sentenced him, or that such court has denied him relief, unless it also appears that ...