United States District Court, D. Colorado
RECOMMENDATION REGARDING APPLICATION FOR WRIT OF
P. Gallagher, United States Magistrate Judge
matter comes before the Court on the Application for a Writ
of Habeas Corpus Pursuant to 28 U.S.C. § 2241 (ECF No.
(“the Application”) filed pro se by
Applicant Gazi Ibrahim Abumezer on November 26, 2018. The
matter has been referred to this Magistrate Judge for
recommendation. See ECF No. 18.
Court must construe Applicant's filings liberally because
he is not represented by an attorney. See Haines v.
Kerner, 404 U.S. 519, 520-21 (1972); Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However,
the Court should not act as an advocate for a pro se
litigant. See Hall, 935 F.2d at 1110.
Court has reviewed the filings to date. The Court has
considered the entire case file, the applicable law, and is
sufficiently advised in the premises. This Magistrate Judge
respectfully recommends that the action should be dismissed
without prejudice for lack of jurisdiction.
FACTUAL AND PROCEDURAL BACKGROUND
1999, Applicant was convicted after a jury trial by the
United States District Court for the Eastern District of New
York of conspiracy to use a weapon of mass destruction,
threat to use a weapon of mass destruction, and use of a
firearm in relation to a crime of violence. See United
States v. Gazi Ibrahim Abu Mezer, No. 97-cr-00804-FB-1
(E.D.N.Y. Aug. 28, 1997). He is serving a life sentence in
prison. Id. at ECF No. 167. The judgment of
conviction was affirmed on direct appeal. Id. at ECF
2001, Applicant filed a motion to vacate under 28 U.S.C.
§ 2255, which was denied. See Cazi Ibrahim Abu Mezer
v. United States, 01-cv-02525-ERK (E.D.N.Y. Apr. 23,
2001). Applicant continued to file in the Eastern District of
New York motions and petitions challenging his conviction and
sentence, each of which has been denied. Id.; see
also 97-cr-00804-FB-1 at ECF No. 219. Applicant also has
moved for leave to file successive habeas petitions, which
have been denied by the Second Circuit in 2006 and 2014.
Id. at ECF No. 219. On August 17, 2016, Applicant
filed pro se another motion seeking to vacate his
conviction, which appears to remain pending. Id. at
ECF No. 205. In the motion, he contends that the Eastern
District of New York lacked jurisdiction over his case.
November 26, 2018, Applicant initiated this habeas corpus
action by filing the Application under 28 U.S.C. § 2241.
He asserts that he “was illegally sentenced under
conspiracy and defective indictment which deprived the court
of Eastern District of New York of jurisdiction to hear and
sentence Mr. Abumezer.” See ECF No. 1 at -3,
6-10. He further asserts that he is being “held in
custody illegally because of sentence imposed by the Court in
New York without jurisdiction to impose sentence on
conspiracy.” Id. Applicant requests that the
judgment be vacated, and that he be immediately released from
custody. Id. at 5.
February 22, 2019, Magistrate Judge Gallagher ordered
Applicant to show cause why this action should not be
dismissed for lack of jurisdiction because Applicant is
challenging the validity of his criminal conviction and
sentence, and he has an adequate and effective remedy
pursuant to 28 U.S.C. § 2255 in the sentencing court.
See ECF No. 12. Applicant filed his Response (ECF
No. 16) on April 3, 2019.
Response, Applicant argues that he is challenging the
execution of his sentence under § 2241 because his
custody in the U.S. penitentiary in Colorado is illegal based
on the void commitment order due to the void judgment entered
again him in the Eastern District of New York, which lacked
subject matter jurisdiction over his criminal case.
See ECF No. 16 at 1-4. He also contends that his
conviction and sentence should be vacated under Sessions
v. Dimaya, 138 S.Ct. 1204 (2018), but that the
sentencing court refused to “honor Mr. Mezer arguments
and issued section 2255 in 2016 and failed to even hold a
hearing on the issue.” Id. at 4-6.
2255(a) expressly prescribes lack of jurisdiction as a basis
for relief under that section: “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 court was without jurisdiction to impose such sentence .
. . may move the court which imposed the sentence to vacate,
set aside or correct the sentence.” Thus, it is clear
to the Court, and Applicant has failed to demonstrate
otherwise, that he is challenging the validity of his
conviction and sentence in this action, and that his claim
should be alleged under 28 U.S.C. § 2255, not' 2241.
And as noted above, Applicant continues to seek relief under
§ 2255 in the sentencing court by raising the
explained to Applicant in the Order to Show Cause, the
purposes of an application for a writ of habeas corpus
pursuant to 28 U.S.C. § 2241 and a motion to vacate
under 28 U.S.C. § 2255 are distinct and well
established. “A petition under 28 U.S.C. § 2241
attacks the execution of a sentence rather than its validity
and must be filed in the district where the prisoner is
confined.” Bradshaw v. Story, 86 F.3d 164, 166
(10th Cir. 1996). “A 28 U.S.C. § 2255 petition
attacks the legality of detention . . . and must be filed in
the district that imposed the sentence.” Id.
(citation omitted). “The purpose of section 2255 is to
provide a method of determining the validity of a judgment by
the court which imposed the sentence, rather than by the
court in the district where the prisoner is confined.”
Johnson v. Taylor, 347 F.2d 365, 366 (10th Cir.
1965) (per curiam).
habeas corpus petition pursuant to' 2241 “is not an
additional, alternative, or supplemental remedy, to the
relief afforded by motion in the sentencing court under'
2255.” Williams v. United States, 323 F.2d
672, 673 (10th Cir. 1963) (per curiam). Instead, “[t]he
exclusive remedy for testing the validity of a judgment and
sentence, unless it is inadequate or ineffective, is ...