United States District Court, D. Connecticut
ORDER DISMISSING PETITION FOR WRIT OF HABEAS
CORPUS
Jeffrey Alker Meyer, United States District Judge
Petitioner
Toney Kelsey has filed a pro se petition for a writ
of habeas corpus under 28 U.S.C. § 2241. Because the
relief that Kelsey seeks must be pursued by means of a motion
for post-conviction relief pursuant to 28 U.S.C. § 2255
rather than by way of a petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2241, I will dismiss the
petition without prejudice to re-filing of a motion for
post-conviction relief pursuant to 28 U.S.C. § 2255.
Background
Kelsey
was convicted after a jury trial on several charges before
Judge Janet C. Hall in the District of Connecticut. See
United States v. Kelsey, No. 3:17-cr-36 (D. Conn.). On
January 4, 2019, Judge Hall imposed a sentence of principally
15 years of imprisonment. Kelsey has filed an appeal, which
is pending before the Second Circuit. See United States
v. Kelsey, 19-138 (2d Cir.).
Kelsey
has now filed a pro se petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2241. His petition
alleges the following claims, all arising from the indictment
and trial before Judge Hall: (1) that the indictment failed
to allege enough facts; (2) that Kelsey was deprived of his
right to confront witnesses when one of his accuser's
statements was introduced into evidence without the accuser
coming to court to testify; (3) that there was an illegal
search and seizure without a warrant; and (4) that witnesses
testified at trial without being put under oath. Doc. #1 at
7-8.
Discussion
A
federal prisoner who seeks relief from a prison sentence has
a choice of federal statutes under which to file a court
action. On the one hand, if the prisoner seeks to challenge
the lawfulness of his conviction and sentence as imposed by
the judge (such as by raising a challenge to the validity of
the indictment, a guilty plea, a trial, or the length of
sentence that the judge imposed), then the prisoner may file
a motion for post-conviction relief pursuant to 28 U.S.C.
§ 2255. On the other hand, if the prisoner seeks to
challenge the lawfulness of how the sentence has been
executed or carried out by prison officials (such as by
raising a challenge to the calculation of good-time credits
or the general conditions of prison treatment and
confinement), then the prisoner may file a petition for a
writ of habeas corpus pursuant to 28 U.S.C. § 2241.
See generally Poindexter v. Nash, 333 F.3d 372, 377
(2d Cir. 2003). If a prisoner seeks to raise the first kind
of challenge (i.e., a challenge to the lawfulness of
his conviction and sentence), he may not pursue such relief
by means of a petition for a writ of habeas corpus under 28
U.S.C. § 2241 unless it is clear that a motion for
post-conviction relief under 28 U.S.C. § 2255 is not
procedurally allowed and unless a failure to allow the
prisoner to seek such relief would raise serious
constitutional questions. Id. at 378.
Kelsey
has filed a petition for a writ of habeas corpus pursuant to
28 U.S.C. § 2241. But it is apparent from his claims
that he disputes the lawfulness of his conviction and
resulting sentence rather than the manner in which prison
officials are implementing the sentence. For the kind of
relief that Kelsey seeks, he should have filed a motion for
post-conviction relief pursuant to 28 U.S.C. § 2255
rather than a petition for a writ of habeas corpus pursuant
to 28 U.S.C. § 2241.
What
should a court do when a prisoner like Kelsey errantly files
a section 2241 petition when he should have filed a section
2255 motion? One option is for a court to simply dismiss the
section 2241 petition and leave it to the prisoner to decide
whether to re-file his claims as a section 2255 motion. A
second option is for the court to convert or recharacterize
the section 2241 petition as a section 2255 motion and then
proceed to adjudicate the action as if the prisoner had
properly filed a section 2255 motion. But because a federal
prisoner is generally restricted to litigating only one
section 2255 motion, a court may not recharacterize a filing
as a section 2255 motion unless the court first warns the
prisoner about this limitation and affords the prisoner an
opportunity either to withdraw the filing or amend it so that
it contains all the section 2255 claims that the prisoner
believes he has. See Castro v. United States, 540
U.S. 375, 383 (2003).
Here,
the first option makes the most sense: for the Court to
simply dismiss Kelsey's section 2241 petition and let
Kelsey decide if he wishes to re-file a section 2255 motion
and when he might wish to do so. A section 2255 motion may be
filed up to one year after a conviction becomes final.
See 28 U.S.C. § 2255(f)(1). Because
Kelsey's conviction is still on direct appeal and not yet
final, he has plenty of time to file a procedurally valid
section 2255 motion. But because it is likely that he will
have only one opportunity to pursue a section 2255 motion, he
might decide it is prudent to wait and see the outcome of his
appeal before deciding (if necessary) what claims he wishes
to pursue to attack the validity of his conviction and
sentence. If Kelsey chooses to file a section 2255 motion, he
should name the “United States of America” as the
defendant or respondent rather than name any particular judge
or other official involved in his criminal prosecution or
trial.
Conclusion
For the
foregoing reasons, the Court DISMISSES the petition for a
writ of habeas corpus without prejudice to filing of a timely
motion for post-conviction relief pursuant to 28 U.S.C.
§ 2255. Because this procedural dismissal without
prejudice does not raise a substantial question of the denial
of a constitutional right, see 28 U.S.C. ยง
2253(c)(2), no certificate of appealability shall ...