Reyes v. Lappin

FILED
NOV 3 0 2009
UNITED STATES DISTRICT COURT Clerk, U.S. District and
FOR THE DISTRICT OF COLUMBIA Bankruptcy Courts
SAMUEL REYES, )
)
Petitioner, )
)
v. )
)
Civil Action No.
09 2262
HARLEY LAPPIN, et al., )
)
Respondents. )
MEMORANDUM OPINION
This matter is before the Court on petitioner's pro se petition for a writ of mandamus and
his application to proceed in forma pauperis. For the reasons stated below, the petition will be
denied.
Petitioner states that, on September 13, 2003, he pled guilty to one count of the criminal
indictment against him for violation of21 U.S.C. §§ 952(a), 960(b)(1)(B), and 963. Pet. at 2. He
alleges that the United States Probation Officer's sentencing recommendation erroneously
factored in certain prior convictions and, as a result, the guideline range under the then-applicable
United States Sentencing Guidelines was increased. Id. at 2-3. He "prays ... to be resentenced
from level 35 category III at 210 months with 2 prior convictions counted to Level 35 without the
prior conviction ... and a total of term 188 months [.]" Id. at 3-4.
The Court construes the petition as a challenge to the legality of a criminal sentence. A
challenge of this nature must be presented to the sentencing court in a motion under 28 U.S.C. §
2255. See Ojo v. Immigration & Naturalization Serv.,106 F.3d 680,683 (5th Cir. 1997)
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(sentencing court is the only court with jurisdiction to hear the defendant's complaint regarding
errors that occurred before or during sentencing). Section 2255 provides specifically 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 imposedjn violation of the Constitution or laws ofthe
United States, or that the court was without jurisdiction to impose
such 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.
28 US.C. § 2255(a) (emphasis added). Moreover, the ability to challenge a conviction by a
motion to vacate sentence generally precludes a challenge by a petition for habeas corpus:
[a]n application for a writ of habeas corpus in behalf of a prisoner
who is authorized to apply for reliefbymotion pursuant to [28 US.c.
§ 2255], 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.
28 US.c. § 2255(e) (emphasis added).
The Court therefore will dismiss the petition without prejudice. An Order consistent with
this Memorandum Opinion is issued separately on this same date.
Date: \ \ 120 { I
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