IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
June 20, 2012
LOUNG HUE TIEU, PETITIONER,
UNITED STATES OF AMERICA, ET AL., RESPONDENTS.
The opinion of the court was delivered by: Carolyn K. Delaney United States Magistrate Judge
FINDINGS & RECOMMENDATIONS
Petitioner is a prisoner confined within this judicial district at FCI Herlong. He proceeds pro se challenging a federal conviction and sentence under 28 U.S.C. § 2241. A review of court records reveals petitioner has not been convicted of any crime in this judicial district.
Collateral challenges to federal convictions or sentences generally must be brought under 28 U.S.C. § 2255. Hernandez v. Campbell, 204 F.3d 861, 864 (9th Cir. 2000). Because nothing before the court suggests any reason for departure from this rule, the court will construe petitioner's application for writ of habeas corpus under 28 U.S.C. § 2241 as a motion attacking his sentence under 28 U.S.C. § 2255. A § 2255 motion must be brought in the court where the sentence was imposed. 28 U.S.C. § 2255(a). Because it is not clear where petitioner was sentenced, the court will recommend that this action be dismissed without prejudice to petitioner filing a § 2255 motion in the district court where he was convicted and sentenced.
In accordance with the above, IT IS HEREBY RECOMMENDED that this action be dismissed without prejudice to petitioner filing a motion brought pursuant to 28 U.S.C. § 2255 in the federal judicial district where he was convicted.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-one days after being served with these findings and recommendations, petitioner may file written objections with the court. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." In his objections petitioner may address whether a certificate of appealability should issue in the event he files an appeal of the judgment in this case. See 28 U.S.C. §2253(c). Failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
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