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Jordan v. United States

United States District Court, Eighth Circuit

December 6, 2013

MELVIN JORDAN, III, Petitioner,
v.
UNITED STATES OF AMERICA

ORDER

LINDA R. READE, Chief District Judge.

This matter appears before the court on Melvin Jordan, III's application for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. Melvin Jordan, III ("the petitioner") filed such application on December 2, 2013.

The petitioner did not pay the filing fee or submit an application to proceed in forma pauperis. See 28 U.S.C. § 1914(a) (requiring $350.00 filing fee for civil actions, except that on application for a writ of habeas corpus the filing fee is $5.00); 28 U.S.C. § 1915 (explaining in forma pauperis proceedings). Further, it is clear that the petitioner's application for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 is more appropriately characterized as a motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255. The challenges asserted are the type of challenges properly submitted in a motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255. See United States v. Lurie, 207 F.3d 1075, 1077 (8th Cir. 2000) (stating that a "challenge to a federal conviction [...] is most appropriately brought as a motion under 28 U.S.C. § 2255"). Because the petitioner is challenging the imposition of his sentence rather than the execution of his sentence, the petitioner's reliance on 28 U.S.C. § 2241 is only proper if the remedy under 28 U.S.C. § 2255 is inadequate or ineffective. See Abdullah v. Hedrick, 392 F.3d 957, 959 (8th Cir. 2004).[1] Contrary to the petitioner's assertion, it cannot be said that the remedy under 28 U.S.C. § 2255 is inadequate or ineffective. Relying on 28 U.S.C. § 2241 rather than 28 U.S.C. § 2255 merely because of the limits regarding an action under the latter statute is impermissible. Id. Thus, the court does not have jurisdiction to consider the petitioner's claim under 28 U.S.C. § 2241.

Based on the foregoing, the petitioner's application for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 is denied.[2] The petitioner's action is dismissed with prejudice. To the extent that the petitioner desires a certificate of appealability under 28 U.S.C. § 2253, the court concludes that there is no basis to issue one.

IT IS SO ORDERED.


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