United States District Court, N.D. Florida, Pensacola Division
ORDER, AND REPORT AND RECOMMENDATION
CHARLES A. STAMPELOS, UNITED STATES MAGISTRATE JUDGE
Robert Andrew Condon initiated this action by filing, through
counsel, what purported to be a petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2241. ECF No. 3. The
actual petition, however, was on the form for filing motions
under 28 U.S.C. § 2255. ECF No. 1. The court directed
Petitioner to clarify whether he wished to proceed under
§ 2255 or § 2241 and correct other deficiencies in
his submission. ECF No. 5 at 2. Instead of responding to that
order, Petitioner requested the issuance of a summons, which
was subsequently served. ECF Nos. 6-8.
November 14, 2019, the court entered another order directing
Petitioner to clarify how he wished to proceed in this court,
under § 2255 or § 2241. ECF No. 9. Petitioner
responded by moving to withdraw the summons (ECF No. 10) and
filing an amended motion to vacate pursuant to 28 U.S.C.
§ 2255. ECF No. 11.
typically “must respect a litigant's decision to
invoke a certain statute.” Wyatt v. United
States, 574 F.3d 455, 460 (7th Cir. 2000). Through his
amended submission, Petitioner in this case has invoked 28
U.S.C. § 2255. The plain language of § 2255(a)
requires that such a motion be filed in “the court
which imposed the sentence.” This court did not impose
Petitioner's sentence. Additionally, the undersigned
notes that at least one court has recognized that a person
convicted in a court-martial proceeding may not file a
section 2255 challenge in the court of conviction because,
following conviction, that court ceases to exist. See
Gilliam v. Bureau of Prisons, 208 F.3d 217, Case
99-1222, 2000 WL 268491, at *1 (8th Cir. 2000) (citing
United States v. DuBay, 37 C.M.R. 411, 413 n. 2
(C.M.A.1967) (noting that, unlike the civil courts, the
court-martial structure does not allow for consideration of
collateral issues by the trial court)). In either event, the
§ 2255 motion challenging Petitioner's court martial
conviction is not properly before this court.
initially identified his case as arising under 28 U.S.C.
§ 2241. See ECF No. 3. Section 2241 is the
proper means for a person convicted by court-martial to seek
habeas relief after exhausting his direct military appeals
and such post-conviction remedies as he may have under the
Uniform Code of Military Justice. See Clinton v.
Goldsmith, 526 U.S. 529, 537 n. 11 (1999). However, as
Petitioner was previously advised, jurisdiction over a
petition pursuant to 28 U.S.C. § 2241 lies in the
district of confinement. See Rumsfeld v. Padilla,
542 U.S. 426, 443 (2004). Therefore, this court also lacks
jurisdiction to consider Petitioner's request for review,
if it is construed as arising pursuant to § 2241,
because he is confined in Leavenworth, Kansas. ECF No. 11 at
construed as a motion pursuant to 28 U.S.C. § 2255 or a
habeas petition pursuant to 28 U.S.C. § 2241, the
instant motion should be dismissed.
11(a) of the Rules Governing Section 2255 Proceedings
provides that “[t]he district court must issue or deny
a certificate of appealability when it enters a final order
adverse to the applicant, ” and if a certificate is
issued “the court must state the specific issue or
issues that satisfy the showing required by 28 U.S.C. §
2253(c)(2).” A timely notice of appeal must still be
filed, even if the court issues a certificate of
appealability. Rule 11(b), § 2255 Rules.
review of the record, the court finds no substantial showing
of the denial of a constitutional right. § 2253(c)(2);
Slack v. McDaniel, 529 U.S. 473, 483-84 (2000)
(explaining how to satisfy this showing) (citation omitted).
Therefore, it is also recommended that the court deny a
certificate of appealability in its final order.
second sentence of Rule 11(a) provides: “Before
entering the final order, the court may direct the parties to
submit arguments on whether a certificate should
issue.” If there is an objection to this recommendation
by either party, that party may bring this argument to the
attention of the district judge in the objections permitted
to this report and recommendation.
it is ORDERED:
Motion to Withdraw Summons (ECF No. 10) is
based on the foregoing, it is respectfully
Petitioner's “Amended Motion under 28 U.S.C. §
2255” (ECF No. ...