ORDER AND FINDINGS AND RECOMMENDATIONS
Petitioner is a federal prisoner proceeding pro se with a petition for writ of habeas corpus brought pursuant to 28 U.S.C. § 2241 seeking to void a criminal judgment along with an application to proceed in forma pauperis.
Examination of the in forma pauperis application reveals that petitioner is unable to afford the costs of suit. Accordingly, the application to proceed in forma pauperis will be granted. See 28 U.S.C. § 1915(a).
Petitioner claims he is a federal prisoner illegally detained because 18 U.S.C. § 3231 was not validly passed by Congress in 1948 in that the U.S. House of Representatives did not have a quorum present for its vote on the Senate's amended version of the bill.*fn1 (See Dkt. No. 1 at 8, 16.) Based on this claim petitioner seeks to void his criminal judgment under 28 U.S.C. § 2241 and Rule 60(b)(4) of the Federal Rule of Civil Procedure, as well as the judgments of any other similarly situated federal prisoners under a class action authorized pursuant to Rule 23 of the Federal Rules of Civil Procedure.
Petitioner claims that he was charged with crimes over which the court had no jurisdiction. (See Dkt. No. 1 at p. 11.) The court has independently determined that on May 23, 2006, petitioner pled guilty in the United States District Court for the District of Arizona to one count of possession with intent to distribute marijuana in violation of 21 U.S.C. § 841(a)(1). See United States District Court for the District of Arizona, 4:06-cr-0294 CKJ JCG, Dkt. Nos. 23-26. Following his entry of plea he received a sentence of thirty months imprisonment followed by a thirty-six month supervised release term. Petitioner did not file an appeal from his judgment of conviction.*fn2
Subsequently, on February 23, 2010, petitioner pled guilty in the United States District Court for the District of Arizona to one count of possession with intent to distribute marijuana in violation of 21 U.S.C. § 841(a)(1). See United States District Court for the District of Arizona , 4:10-cr-0245 CKJ JCG 1, Dkt. Nos. 13-16. In that case petitioner was sentenced on May 13, 2010 to a sixty month term of imprisonment followed by a sixty month supervised release term for that conviction. Again, petitioner did not file an appeal from his judgment of conviction.
Petitioner is currently incarcerated at FCI - Herlong in Herlong, California. In March 2012, petitioner filed the instant petition in this court seeking habeas relief. For the following reasons, that federal habeas petition should be summarily dismissed.
Habeas petitions brought under 28 U.S.C. § 2241 are subject to summary dismissal pursuant to Rules 1(b) and 4 of the Rules Governing Section 2254 Cases. "If it plainly appears from the face of the petition . . . that the petitioner is not entitled to relief in the district court, the judge shall make an order for its summary dismissal . . . ." Rule 4, Rules Governing § 2254 Cases. Rule 4 "'explicitly allows a district court to dismiss summarily the petition on the merits when no claim for relief is stated.'" O'Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990) (quoting Gutierrez v. Griggs, 695 F.2d 1195, 1198 (9th Cir. 1983)).
II. SCREENING OF PETITION
Motions that contest the legality of a federal sentence must be filed under 28 U.S.C. § 2255 in the sentencing court. Comparatively, petitions that challenge the manner, location or conditions of the execution of a sentence are to be brought pursuant to 28 U.S.C. § 2241 in the custodial court. See Hernandez v. Campbell, 204 F.3d 861, 864 (9th Cir. 2000) (citing Doganiere v. United States, 914 F.2d 165, 169-70 (9th Cir. 1990); Brown v. United States, 610 F.2d 672, 677 (9th Cir. 1980)) (footnote omitted). Nevertheless, under the savings clause of § 2255, "a federal prisoner may file a habeas corpus petition pursuant to § 2241 to contest the legality of a sentence where his remedy under § 2255 is 'inadequate or ineffective to test the legality of his detention.'" Id. at 864-65 (quoting 28 U.S.C. § 2255).
Petitioner argues that the sentencing court lacked jurisdiction to enter a judgment and sentence against him. This represents a challenge to the legality of his sentence which falls within the scope of 28 U.S.C. § 2255. Indeed, 28 U.S.C. § 2255 specifically states that:
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 a 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.
Id. (emphasis added). Accordingly, because petitioner has a potential remedy under § 2255 to attack the judgment and conviction entered in the United States District Court for the District of Arizona for lack of jurisdiction, the savings clause of § 2255 is inapplicable to his § 2241 petition.
Petitioner also seeks to vacate his criminal conviction pursuant to Rule 60(b)(4) of the Federal Rules of Civil Procedure. Rule 60(b)(4) states that, "[o]n motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceedings [where] the judgment is void." However, the Federal Rules of Civil Procedure do not apply in criminal cases. Instead, "[t]hese rules govern the procedure in the United States district courts in all suits of a civil nature." FED. R. CIV. P. 1. See also United States v. Mosavi, 138 F.3d 1365, 1366 (11th Cir. 1998) ("Rule 60(b) simply does not apply for relief from judgment in a criminal case."); United States v. Andrade-Larrios, 39 F.3d 986, 988 (9th Cir. 1994) ("[T]he Federal Rules ...