The opinion of the court was delivered by: Honorable Barry Ted Moskowitz United States District Judge
ORDER DISMISSING SECTION MOTION
For the reasons set forth below, the Court VACATES its order entered July 22, 2011, construing Mr. Ehlers' 28 U.S.C. § 2255 motion as a 28 U.S.C. § 2241 petition, and DISMISSES the § 2255 motion.
On August 21, 2007, a general court-martial at the United States Marine Corps Base Camp Pendleton convicted Edwin Arthur Ehlers II of sodomy with a child under the age of 12 years, assault consummated by a battery upon a child under 16 years and indecent liberties with a child under the age of 16 years, in violation of Articles 125, 128 and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 925, 928 and 934.1. (Dkt. 1; Dkt. 13, Ex. A at 2-3.) Mr. Ehlers was sentenced to confinement for 25 years, forfeiture of all pay and allowances, reduction to pay grade E-1, and a dishonorable discharge. (Dkt. 13, Ex. A at 2-3.) The convening authority subsequently reduced the petitioner's confinement to 19 years.
On April 21, 2011, Mr. Ehlers filed a motion pursuant to 28 U.S.C. § 2255 alleging constitutional errors in his court-martial including denial of his right to counsel, ineffective assistance of counsel in violation of the Sixth Amendment and withholding of exculpatory evidence. (Dkt. 1.) In an order entered July 22, 2011, the Court found that Plaintiff could not satisfy the jurisdictional requirements of § 2255(a) because this Court did not impose the challenged sentence. In that same order, the Court construed Plaintiff's pleading as a habeas petition under 28 U.S.C. § 2241 and ordered the parties to show cause why this case should not be transferred to the District of Kansas (the district of Plaintiff's confinement). (Dkt. 5.)
This Court initially construed Mr. Ehlers' § 2255 motion as a § 2241 petition because § 2241 is the only avenue provided by the habeas statutes for a military prisoner to collaterally attack a court-martial conviction. Section 2255(e) states:
"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 the remedy by motion is inadequate or ineffective to test the legality of his detention." (Emphasis added.) It is impossible for a military prisoner to move under § 2255 before "the court which sentenced him" because "courts-martial are ad hoc proceedings which dissolve after the purpose for which they were convened has been resolved." Witham v. United States, 355 F.3d 501, 505 (6th Cir. 2004). Thus "the remedy by [§ 2255] motion is inadequate or ineffective to test the legality of detention." 28 U.S.C. § 2255(e); see also Witham, 355 F.3d at 505 ("This clause applies to the military prisoner . . . ."). Additionally, neither the Uniform Code of Military Justice nor the Manual for Courts-Martial provides for collateral review within the military courts. Consequently, military prisoners seeking to collaterally attack their convictions may do so only by filing a § 2241 petition. See Prost v. Anderson, 636 F.3d 578, 588 (10th Cir. 2011) ("[R]esort to § 2241 is the norm rather than the exception when a military prisoner seeks to challenge the results of his [court-martial]."); Witham, 355 F.3d at 505 (same).
"Section 2255 is not a different form of relief from § 2241" when the latter is used by a military prisoner to challenge his court-martial conviction. Witham, 355 F.3d at 505. However, the proper procedure for filing a § 2241 petition is different in key respects.
First, the respondent in a § 2241 petition must be "the person who has custody over [the petitioner]." 28 U.S.C. § 2242. In Rumsfeld v. Padilla, 542 U.S. 426 (2004), the Supreme Court clarified that the person who has custody over the petitioner is the petitioner's immediate custodian. "[I]n habeas challenges to present physical confinement--'core challenges'--the default rule is that the proper respondent is the warden of the facility where the prisoner is being held, not the Attorney General or some remote supervisory official." Padilla, 542 U.S. at 435 (citing Braden v. 30th Judicial Circuit Court of Ky., 410 U.S. 484, 494-95 (1973); Wales v. Whitney, 114 U.S. 564, 574 (1885)).
Second, 28 U.S.C. § 2241 states that "[w]rits of habeas corpus may be granted by the . . . district courts . . . within their respective jurisdictions." This limitation, combined with the requirement that the petitioner name his immediate custodian as the respondent, "compose[s] a simple rule . . . Whenever a § 2241 habeas petitioner seeks to challenge his present physical custody within the United States, he should name his warden as respondent and file the petition in the district of confinement." Padilla, 542 U.S. at 447 (emphasis added).
In his concurring opinion in Padilla, Justice Kennedy suggested that "[o]nly in an exceptional case may a court deviate from those basic rules to hear a habeas petition filed against some person other than the immediate custodian of the prisoner, or in some court other than the one in whose territory the custodian may be found." Id. at 454 (Kennedy, J., concurring). These exceptional cases arise "in cases of nonphysical custody, . . . of removal of the prisoner from the territory of a district after a petition has been filed," and in cases where the Government has purposefully made it difficult to file in the district of confinement by moving the prisoner or concealing information. Id.
Mr. Ehlers is currently confined in Fort Leavenworth, Kansas. Under the rule articulated in Padilla, the proper respondent for Mr. Ehler's habeas petition would be the warden of that facility, and the only district court having jurisdiction over his petition ...