Drapeau v. Mukasey

• Court: District Court, District of Columbia
• Decided: January 13, 2009
• Docket: Civil Action No. 2009-0067
• Status: Published

Opinion

FILED UNITED STATES DISTRICT COURT JAN 13 2009 FOR THE DISTRICT OF COLUMBIA Clerk, U.S. District and Bankruptcy Courts Bernard J. Drapeau, Jr., ) ) Plaintiff, ) ) v. ) ) Civil Action No. 09 0067 Michael Mukasey et al., ) ) Defendants. )

MEMORANDUM OPINION

Petitioner is a federal prisoner under criminal sentence imposed by the United States

District Court for the District of South Dakota currently incarcerated at the Federal Correctional

Institution, Englewood Facility, in Littleton, Colorado. He has applied to proceed informa

pauperis and submitted a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. The

Court will grant the application and dismiss the petition for lack of jurisdiction.

Petitioner has filed a petitioner under § 2241 to collaterally attack his conviction,

questioning the court's jurisdiction and stating that his Sixth Amendment right to confrontation

was abridged. A § 2241 petition is not available for this purpose.

An application for a writ of habeas corpus in behalf of a prisoner who is authorized to apply for relief by motion pursuant to [§ 2255] shall not be entertained ifit appears that the applicant has failed to apply for [§ 2255] 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 U.s.c. § 2255. See Ojo v. Immigration & Naturalization Service, 106 F.3d 680,683 (5th Cir.

1997) (the sentencing court is the only court with jurisdiction to hear defendant's complaint

regarding errors that occurred before or during sentencing). Petitioner has not demonstrated that

remedy by motion under § 2255 is inadequate or ineffective to test the legality of his detention.

3 Because his challenged conviction was not entered by this Court, no basis exists for maintaining a

habeas action here.

Accordingly, the case will be dismissed by separate Order issued contemporaneously.

Date: I J. /r81()~