United States District Court, D. Kansas
MEMORANDUM AND ORDER
RICHARD D. ROGERS, District Judge.
This pro se petition for writ of habeas corpus was filed pursuant to 28 U.S.C. § 2241 by Mr. Garcia while he was confined at the United States Penitentiary, Leavenworth, Kansas. Having examined the materials filed, the court finds that this is Mr. Garcia's second attempt to challenge his federal conviction or sentence in a § 2241 petition in the district of his confinement rather than by motion in the sentencing court, which is the exclusive remedy for such claims. Accordingly, the court dismisses this petition for lack of jurisdiction.
BACKGROUND FACTS AND CLAIMS
The court takes judicial notice of the records in Garcia v. United States Attorney General, et al., Case No. 10-3147-RDR (D.Kan. Nov. 12, 2010), and written opinions in Mr. Garcia's criminal case. The following background facts are garnered from these records. Mr. Garcia was convicted in the United States District Court for the Southern District of Indiana of conspiracy to distribute in excess of 500 grams of methamphetamine in violation of 28 U.S.C. §§ 841(a)(1) and 846. ( USA v. Garcia, 07-cr-0012-09 (S.D. Ind.)). He was found guilty by a jury and sentenced in 2007 to 380 months in prison. His direct appeal to the Seventh Circuit Court of Appeals was denied in 2009. United States V. Garcia, 580 F.3d 528, 542-43 (7th Cir. 2009), cert. denied, Decker v. U.S., 559 U.S. 957 (2010). In 2010, Mr. Garcia filed a § 2241 petition in the United States District Court for the District of Columbia, which was transferred to this court and ultimately dismissed for lack of jurisdiction. See Garcia, Case No. 10-3147-RDR.
Petitioner claims that he is entitled to relief on the following grounds: (1) his counsel filed a motion for leave to withdraw "pursuant to Anders v. California " stating that "upon review of the record" he "could not find any non-frivolous arguments to raise on appeal" and was allowed to withdraw leaving Mr. Garcia without counsel; (2) his counsel was ineffective for failing to file an appeal and he was blocked from appellate review; (3) there was no conspiracy; (4) he "merely sold a jet ski, not a jet;" (5) he is "entitled to relief based upon due process... under the Fifth Amendment and Supreme Court rulings in Apprendi v. New Jersey " and Alleyne v. United States; and (6) Alleyne should be found to retroactively apply on collateral review. He also refers to a "multiplicitous indictment." The court notes in passing that none of these claims is supported with more than vague allegations and conclusory statements.
Mr. Garcia was informed by this court in his prior § 2241 action regarding the relevant provisions of 28 U.S.C. § 2255. § 2255(a) provides:
A prisoner in custody under sentence of a (federal) court... claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or law of the United States.., or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.
Id. Subsection (e) of Section 2255 provides:
An application for 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... unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of his detention.
The petition filed in this case is deficient in several respects. First, it is not upon court-approved forms. Mr. Garcia is obligated, despite his pro se status, to comply with local court rules. Second, petitioner has made no attempt to satisfy the statutory filing fee prerequisites. He has neither paid the filing fee nor submitted any type of motion to proceed in forma pauperis (IFP). An IFP motion must likewise be submitted upon court-approved forms. Furthermore, an IFP motion must contain an affidavit and be accompanied by an institutional account statement showing at least a current balance. 28 U.S.C. § 1915. Mr. Garcia was previously made aware of these statutory prerequisites. He does not satisfy the prerequisite to provide current financial and inmate account by stating that "his economic status remains unchanged from original conviction." Nor is he entitled to a waiver of the statutory fee prerequisites by his request "to proceed in forma pauperis as a continuation of" his criminal case or his unexplained citation to "Rule 60(b) et seq. (Error Coram Nobis)."
Furthermore, petitioner's claims in the instant § 2241 petition, like those in his prior petition, are clearly attacks upon his federal conviction or sentence. As the court ruled in Mr. Garcia's prior action, this court lacks jurisdiction under § 2241 to hear such claims. He was advised in his prior action that once a direct appeal has been completed, a federal prisoner's exclusive ...