Kissi v. usa/doj

• Court: District Court, District of Columbia
• Decided: July 25, 2011
• Docket: Civil Action No. 2011-1141
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

DAVID KISSI, ) ) Petitioner, ) ) v. ) Civil Action No. 11-1141 (RBW) ) UNITED STATES OF AMERICA, ) ) Respondent. )

MEMORANDUM OPINION

This matter is before the Court on David Kissi’s motion under 28 U.S.C. § 2255 to

vacate, set aside or correct his criminal sentence. The motion will be denied, all pending

motions will be denied, and this action will be dismissed.

Petitioner was convicted in the United States District Court for the District of Maryland

by a jury on two counts of bankruptcy fraud, three counts of obstruction of justice, and two

counts of criminal contempt. A Petition for a Writ of Habeas Corpus Intent to Seek Correction

of Sentence or to Set Aside a Wrong Judgment Despite the Verdict Pursuant to 28 U.S.C.

2255(F)(2) (“Pet.”), Attachment (excerpt from transcript of August 10, 2007 sentencing

hearing). He already has served the 30-month term of imprisonment received, but he has not yet

paid the $40,000 assessment and penalties or completed his three-year term of supervised

release. Pet. at 1. Alleging errors in the sentence that was imposed and raising a claim of

ineffective assistance of counsel, see generally id. at 1-14, petitioner “begs the court to correct

his sentence at a new hearing” and to “wipe out his court fines and probation.” Id. at 15. In the

alternative, he argues that he “should be allowed to introduce newly discovered evidence of

fraud on the part of the [United States] . . . in order to have the instant court set aside his

1 wrongful conviction despite the verdict after jury trial.” Id.

Where, as here, petitioner challenges his conviction and sentence, “he must do so in a

motion in the sentencing court under 28 U.S.C. § 2255.” Spencer v. United States, No. 11-0734,

2011 WL 1624991, at *1 (D.D.C. Apr. 8, 2011) (Walton, J.); see also Pradelski v. Hawk-Sawyer,

36 F. Supp. 2d 1, 2 (D.D.C. 1999) (“When proceeding by § 2255 . . . the federal prisoner must

file his motion to vacate, set aside, or correct his sentence in the court which imposed the

sentence.”) (internal quotation marks omitted)); Olson v. United States, 587 F. Supp. 2d 162, 162

(D.D.C. 2008) (stating that a motion under § 2255 “must be presented to the sentencing court”).

Petitioner also may raise an ineffective assistance of counsel claim in such a collateral

proceeding. See Massaro v. United States, 538 U.S. 500, 504 (2003).

Notwithstanding petitioner’s assertion that “all 4th Circuit forums have been very, very

hostile to him,” Pet. at 14, his motion should have been brought in the United States District

Court for the District of Maryland. See 28 U.S.C. § 2255(a) (providing that a prisoner “move the

court which imposed sentence to vacate, set aside or correct the sentence”). The Court therefore

will deny the petition and dismiss this action without prejudice. See, e.g., Atunez v. Gonzales,

No. 07-0556, 2007 WL 1100505, at *1 (D.D.C. Apr. 10, 2007) (dismissing petition challenging

federal district court’s jurisdiction and raising claim of ineffective assistance of counsel because

these matters should have been brought by motion under § 2255 in the sentencing court). An

Order consistent with this Memorandum Opinion is issued separately.

/s/ DATE: July 22, 2011 REGGIE B. WALTON United States District Judge