Berry v. United States of America

• Court: District Court, District of Columbia
• Decided: April 6, 2012
• Docket: Civil Action No. 2012-0545
• Status: Published

Opinion

FILED APR - 6 :~12 UNITED STATES DISTRICT COURT Clerk, U.S. Distnct & Bankruptcy FOR THE DISTRICT OF COLUMBIA Courts for the District of Columbia

Everton A. Berry, ) ) Petitioner, ) ) v. ) Civil Action No. 12 0545 ) United States of America eta!., ) ) Respondents. )

MEMORANDUM OPINION

This matter is before the Court on the petition for relief under 28 U.S.C. § 2255,

accompanied by petitioner's application to proceed in forma pauperis. The Court will grant the

application to proceed in forma pauperis and will dismiss the case for lack of jurisdiction.

Petitioner is a North Carolina prisoner challenging a judgment of conviction purportedly

entered by the United States District Court for the Eastern District of North Carolina. Pet.~ 1.

Petitioner claims that he was denied his Sixth Amendment right to counsel during his criminal

trial. See id. at 6. Petitioner must present his claim to the sentencing court by motion filed

pursuant to 28 U.S.C. § 2255, which states:

[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 ofthe 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.

28 U.S.C. § 2255(a). Moreover,

[a]n application for a writ of habeas corpus in behalf of a prisoner who is authorized to apply for reliefby motion pursuant to [28 U.S.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.

3 28 U.S.C. § 2255(e). Petitioner has not shown that his available remedy is inadequate or

ineffective.

If, as it appears, petitioner is actually challenging a state conviction, his federal court

remedy lies under 28 U.S.C. § 2254 after the exhaustion of available state remedies. See 28

U.S.C. §2254(b)(l). Thereafter, "an application for a writ ofhabeas corpus[] made by a person

in custody under the judgment and sentence of a State court ... may be filed in the district court

for the district wherein such person is in custody or in the district court for the district within

which the State court was held which convicted and sentenced [petitioner] and each of such

district courts shall have concurrent jurisdiction to entertain the application." 28 U.S.C. §

2241(d).

Whether proceeding under§ 2255 or§ 2254, petitioner has no available remedy in this

Court. A separate Order of dismissal accompanies this Memorandum Opinion.

~ Date: April Lf , 2012