Fay v. Holder

FILED
UNITED STATES DISTRICT COURT
MAR 3 1 2011
FOR THE DISTRICT OF COLUMBIA Clerk. U.S. District & l3ankruptcy
Courts for the District of Columbia
LEIGHTON FAY, )
)
Petitioner, )
)
v. ) Civil Action No. 11 ()650
)
ERIC HOLDER, )
)
Respondent. )
MEMORANDUM OPINION
This matter is before the Court on petitioner's application to proceed injorma
pauperis and petition for a writ of habeas corpus. The Court will grant the former and deny
the latter.
Petitioner was released from federal custody on November 8, 2005, and pursuant to the
United States Parole Commission's decision in February 2007 to revoke parole, he will
remain in custody until February 2021. Currently he is incarcerated at the United States
Penitentiary in Leavenworth, Kansas. Petitioner alleges that, as a member of the Sioux
Nation, he is not subject to the authority of the United States Government. On this basis
petitioner contends that the federal courts which convicted and sentenced him, and the United
States Parole Commission which has revoked his parole, lacked jurisdiction to take these
actions.!
The Court notes that petitioner unsuccessfully has raised substantially similar
claims in a prior proceeding. See Fay v. Chester, No. 10-3225, 2011 WL 397720 (10th Cir.
Feb. 8, 2011) (affirming district court's denial of petition for writ of habeas corpus).
1
Ii
Where, as here, petitioner challenges the jurisdiction of the federal court imposing
sentence or attacks on the constitutionality of his conviction, he must do so in a motion in the
sentencing court under 28 U.S.c. § 2255. See Ojo v. Immigration & Naturalization Serv., 106
F.3d 680, 683 (5th Cir. 1997); Taylor v. U.S. Board oj Parole, 194 F.2d 882, 883 (D.C. Cir.
1952). Although petitioner's challenges to the revocation of parole and the mandatory release
date set by the Parole Commission are cognizable under 28 U.S.C. § 2241, this court is not the
proper forum for their resolution because petitioner is incarcerated in Kansas. Stokes v. U.S.
Parole Comm'n, 374 F.3d 1235, 1239 (D.C. Cir. 2004) ("[A] district court may not
entertain a habeas petition involving present physical custody unless the respondent custodian
is within its territorial jurisdiction. ").
The Court will deny the petition without prejudice and will dismiss this civil action.
An Order is issued separately.
DATE: (i\ W~ ·J...l, \..() 1\
2