United States District Court, M.D. Florida, Ocala Division
J. DAVIS UNITED STATES DISTRICT JUDGE
Lupe Tovar Alaniz, Jr. initiated this case by filing a
Petition for Writ of Habeas Corpus, utilizing a form for
cases filed pursuant to 28 U.S.C. § 2241 (Doc. 1).
Petitioner is a federal prisoner at the Coleman Federal
Correctional Complex challenging his 2012 conviction and
sentence imposed by the United States District Court for the
Northern District of Texas, Abilene Division. Petition at 1.
Petitioner asks the Court to “vacate his conviction and
sentence as unconstitutional.” Id. at 19. More
specifically, he contends the trial court lacked authority to
accept his plea to a charge of possession of a firearm in
furtherance of a drug trafficking crime because neither the
indictment nor the plea colloquy specified a quantity of
drugs. Id. at 15-16.
collateral attacks on the validity of a federal sentence must
be brought under § 2255.” Turner v. Warden
Coleman FCI (Medium), 709 F.3d 1328, 1333 (11th Cir.
2013) (quoting Darby v. Hawk-Sawyer, 405 F.3d 942,
944 (11th Cir. 2005)) (abrogated on other grounds).
Challenges to the execution of a sentence, rather than the
validity of the sentence itself, are properly brought under
§ 2241. Antonelli v. Warden, U.S.P. Atlanta,
542 F.3d 1348, 1352 (11th Cir. 2008). “[A] prisoner
collaterally attacking his conviction or sentence may not
avoid the various procedural restrictions imposed on . . .
§ 2255 motions by nominally bringing suit under §
2241.” Id. at 1351.
the Petitioner does not challenge the execution of his
sentence but rather its legality, contending his conviction
and sentence resulted from “an indictment with a
jurisdictional defect, ” which he says deprived the
court of authority to accept his plea. Petition at 15, 16.
Because Petitioner challenges the validity of his conviction
and sentence, § 2255, not § 2241, is the
appropriate statutory vehicle for his claims. See, e.g.,
Herrera v. Warden, FCC Coleman-USP I, 596 Fed.Appx.
859, 862 (11th Cir. 2015) (affirming dismissal of a §
2241 petition where the petitioner asserted the indictment
was defective); Benitez v. Warden, FCI Miami, 564
Fed. App'x 497, 499 (11th Cir. 2014) (affirming dismissal
of a § 2241 petition alleging, among other grounds, an
asserts § 2255's “savings clause”
applies, making his claim cognizable under § 2241.
Petition at 19. Petitioner's assertion that the
“savings clause” under § 2255 permits him to
proceed under § 2241 is unavailing. Under §
2255's savings clause, “a prisoner may file a
§ 2241 petition if the § 2255 remedy ‘is
inadequate or ineffective to test the legality of his
detention.'” Benitez, 564 Fed.Appx. at 499
(quoting § 2255(e)). The petitioner has “[t]he
burden of demonstrating the inadequacy or ineffectiveness of
the § 2255 remedy.” Id. (citation
omitted). Petitioner's only basis for invoking the
“savings clause” is his conclusory assertion that
“challenges to an indictment are not properly brought
in a direct appeal, and are not cognizable . . . under §
2255(a).” Petition at 19. Not only does Petitioner not
support this assertion with any legal authority, as noted, a
claim challenging the validity of an indictment is in fact
cognizable under § 2255. Herrera, 596 Fed.Appx.
at 862; Benitez, 564 Fed.Appx. at 499.
review, the Court is convinced this action is properly
considered under § 2255. With a petitioner's
consent, a district court generally may recharacterize a
§ 2241 petition as a motion to vacate, set aside, or
correct a sentence under § 2255. See Castro v.
United States, 540 U.S. 375, 383 (2003). Such action by
this Court is not appropriate under these circumstances,
however. A petitioner collaterally attacking his sentence
must file a motion under § 2255 in the court that
imposed the sentence. See 28 U.S.C. §2255(a). Petitioner
was convicted and sentenced in the Northern District of
Texas. Thus, to the extent Petitioner has a viable §
2255 motion, this Court lacks jurisdiction to entertain the
motion. Given Petitioner has not previously filed a motion to
vacate his sentence under § 2255, in the interest of
justice, the Court finds this case should be transferred to
the Northern District of Texas for that court's
determination whether the Petition should be recharacterized
as one under § 2255. See 28 U.S.C. § 1631 (permitting a
district court lacking jurisdiction to consider a claim to
transfer the action to the court in which the action could
have been brought).
case is TRANSFERRED to the United States
District Court for the Northern District of Texas.
Clerk is directed to take all necessary
steps to effect the transfer and thereafter close the file.
 Petitioner concedes he has not
previously filed a § 2255 motion attacking his federal