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Key v. Rios

June 22, 2010

JERRY LEE KEY, PETITIONER,
v.
HECTOR A. RIOS, JR., RESPONDENT.



The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge

FINDINGS AND RECOMMENDATION REGARDING PETITION FOR WRIT OF HABEAS CORPUS

[Doc. 1]

Petitioner is a federal prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241.

BACKGROUND*fn1

Petitioner is currently incarcerated at the United States Penitentiary in Atwater, California. He challenges his conditional guilty plea and sentence in the United States District Court for the Southern District of West Virginia for possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1). He was sentenced under the armed career criminal statute to 210 months imprisonment.

Petitioner appealed his conviction and sentence to the Fourth Circuit Court of Appeals and United States Supreme Court. On April 22, 1998, the Fourth Circuit affirmed the conviction. Petitioner petitioned for a writ of certiorari to the United States Supreme Court which was denied.

On September 14, 1999, Petitioner filed a motion to vacate, set aside or correct the sentence pursuant to 28 U.S.C. § 2255 in the sentencing court, which was denied on August 2, 2000.

On January 2, 2001, the Fourth Circuit denied Petitioner's petition for rehearing. On April 16, 2001, Petitioner filed a petition for writ of certiorari in the United States Supreme Court, which was denied.

On December 21, 2009, Petitioner mailed a letter to the United States Court of Appeals for the Fourth Circuit which he requested be construed as a petition under 28 U.S.C. § 2244 authorizing the filing of a second or successive application for relief under 28 U.S.C. § 2255. On March 11, 2010, the Fourth Circuit denied Petitioner's request for relief, in case number 09-321.

On April 5, 2010, Petitioner attempted to file a petition for writ of habeas corpus under 28 U.S.C. § 2241(a) in the United States Supreme Court, which was returned by the Court on April 14, 2010. Petitioner attempted again to file a petition on April 27, 2010, which was returned by the Court on May 5, 2010.

Petitioner filed the instant petition for writ of habeas corpus on June 7, 2010. Petitioner argues that the his prior escape conviction was not a "violent felony" under the Armed Career Criminal Act (ACCA). Petitioner also contends that he is actually innocent of the ACCA sentencing designation because he has not suffered three prior violent felony or serious drug offenses.

DISCUSSION

A prisoner who wishes to challenge the validity or constitutionality of his federal conviction or sentence must do so by way of a motion to vacate, set aside, or correct the sentence under 28 U.S.C. § 2255. Tripati v. Henman, 843 F.2d 1160, 1162 (9th Cir.1988); Thompson v. Smith, 719 F.2d 938, 940 (8th Cir.1983); In re Dorsainvil, 119 F.3d 245, 249 (3rd 1997); Broussard v. Lippman, 643 F.2d 1131, 1134 (5th Cir.1981). In such cases, only the sentencing court has jurisdiction. Tripati, 843 F.2d at 1163. A prisoner may not collaterally attack a federal conviction or sentence by way of a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. Grady v. United States, 929 F.2d 468, 470 (9th Cir.1991); Tripati, 843 F.2d at 1162; see also United States v. Flores, 616 F.2d 840, 842 (5th Cir.1980).

In contrast, a prisoner challenging the manner, location, or conditions of that sentence's execution must bring a petition for writ of habeas corpus under 28 U.S.C. § 2241. Capaldi v. Pontesso, 135 F.3d 1122, 1123 (6th Cir. 1998); United States v. Tubwell, 37 F.3d 175, 177 (5th Cir. 1994); Kingsley v. Bureau of Prisons, 937 F.2d 26, 30 n.5 (2nd Cir. 1991); United States v. Jalili, 925 F.2d 889, 893-94 (6th Cir. 1991);Barden v. Keohane, 921 F.2d 476, 478-79 (3rd Cir. 1991); ...


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