Abumezer v. Stancil

          RECOMMENDATION REGARDING APPLICATION FOR WRIT OF HABEAS CORPUS

          Gordon P. Gallagher, United States Magistrate Judge

         This matter comes before the Court on the Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 (ECF No. 1)^[1] (“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.^[2]

         The 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.

         The 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.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         In 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 No. 179.

         In 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. Id.

         On 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.

         On 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.

         In the 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.

         II. DISCUSSION

         Section 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 jurisdictional argument.

         As 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).

         A 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 ...