Fay v. Holder

• Court: District Court, District of Columbia
• Decided: March 31, 2011
• Docket: Civil Action No. 2011-0650
• Status: Published

Opinion

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.

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