attack on the constitutionality of the statute under which defendant was convicted and sentenced is properly pursued by motion under 28 U.S.C. § 2255
How later courts described this case
- attack on the constitutionality of the statute under which defendant was convicted and sentenced is properly pursued by motion under 28 U.S.C. § 2255
- the sentencing court is the only court with jurisdiction to hear defendant's complaint regarding errors that occurred before or during sentencing
Written by the judges who cited it.
The opinion
FILED
OCT - 9 2009
UNITED STATES DISTRICT COURT NANty MAYER WHITTINGTON, CLERK
FOR THE DISTRICT OF COLUMBIA U.S. DISTRICT COURT
Douglas Emanuel Foreman, )
)
Plaintiff, )
)
v. ) Civil Action No. 09-1630 (UNA)
)
Brent W. Hunter et aI., )
)
Defendants. )
MEMORANDUM OPINION
The plaintiff has filed a pro se complaint and an application to proceed in forma
pauperis. The Court will grant the application to proceed in forma pauperis and dismiss the
complaint.
Plaintiff Douglas Emanuel Foreman is a prisoner currently incarcerated under federal
sentence imposed by the United States District Court for the Eastern District of Virginia. See
electronic docket, USA v. Foreman, Criminal Action No. 01-90 (E.D. Va. Dec. 20, 2001). The
complaint names as defendants law enforcement officials involved in his arrest and prosecution,
as well as the plaintiffs own court-appointed defense counsel. The complaint conclusorily
alleges wrongful imprisonment and kidnapping, procurement of false testimony, and interference
with the plaintiff s enjoyment of his constitutional rights. It also makes repeated reference to
sections of Title 18 of the U.S. Code. For relief, the complaint seeks immediate release from
custody, as well as compensatory and punitive damages in an unspecified amount.
To the extent plaintiff seeks immediate release from custody, the proceedings must be
considered as a petition for habeas corpus. Because his request for immediate release is based on
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alleged violations of his rights occurring in the course of his prosecution and sentencing, this
matter presents a collateral attack on the plaintiff s conviction and sentence, which must be
presented to the sentencing court in a motion under 28 U.S.C. § 2255, which states as follows:
An application for a writ of habeas corpus in behalf of a prisoner who is
authorized to apply for relief by motion pursuant to [§ 2255] shall not be entertained
ifit appears that the applicant has failed to apply for [§ 2255] relief, by motion, to the
court which sentenced him, or that such court has denied him relief, unless it also
appears that the remedy by motion is inadequate or ineffective to test the legality of his
detention.
28 U.S.C. § 2255. See Taylor v. United States Board o/Parole, 194 F.2d 882,883 (D.C. Cir.
1952) (attack on the constitutionality of the statute under which defendant was convicted and
sentenced is properly pursued by motion under 28 U.S.C. § 2255); Djo v. Immigration &
Naturalization Service, 106 F.3d 680, 683 (5 th Cir. 1997) (the sentencing court is the only court
with jurisdiction to hear defendant's complaint regarding errors that occurred before or during
sentencing). The Court takes judicial notice that plaintiff has been denied relief on a motion under
§ 2255 to vacate his sentence, see electronic docket, USA v. Foreman, Criminal Action No. 01-90
(E.D. Va. Sept. 7,2005), and has been denied authorization to file a successive motion, see id.
(Oct. 25, 2007). The plaintiff has not presented any evidence to demonstrate, and the court does
not discern any grounds for concluding, that a remedy under § 2255 is inadequate or ineffective.
Therefore, this court lacks jurisdiction to entertain the request for immediate release from federal
custody, and the request for release will be dismissed for lack of subject matter jurisdiction.
To the extent the plaintiff seeks money damages for conduct that would imply that his
conviction is not valid, he is barred from bringing such a suit unless he can demonstrate that his
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conviction or sentence has been reversed on direct appeal, expunged by executive
order, declared invalid by a state tribunal authorized to make such determination, or
called into question by a federal court's issuance of a writ of habeas corpus.
Heck v. Humphrey, 512 U.S. 577,487 (1994). The plaintiff has made no showing that his
conviction and sentence have been invalidated by a court. Accordingly, the claims for damages
will be dismissed for failure to state a claim upon which relief rna be granted.
A separate order accompanies this memorand.~...~I-"
Date: /u j{j C)
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