                                                                                          FILED
                                                                                           NOV 3 0 2009
                              UNITED STATES DISTRICT COURT                           Clerk, U.S. District and
                              FOR THE DISTRICT OF COLUMBIA                             Bankruptcy Courts

SAMUEL REYES,                                   )
                                                )
                         Petitioner,            )
                                                )
          v.                                    )
                                                )
                                                        Civil Action No.
                                                                               09 2262
HARLEY LAPPIN, et al.,                          )
                                                )
                         Respondents.           )

                                       MEMORANDUM OPINION

          This matter is before the Court on petitioner's pro se petition for a writ of mandamus and

his application to proceed in forma pauperis. For the reasons stated below, the petition will be

denied.

          Petitioner states that, on September 13, 2003, he pled guilty to one count of the criminal

indictment against him for violation of21 U.S.C. §§ 952(a), 960(b)(1)(B), and 963. Pet. at 2. He

alleges that the United States Probation Officer's sentencing recommendation erroneously

factored in certain prior convictions and, as a result, the guideline range under the then-applicable

United States Sentencing Guidelines was increased. Id. at 2-3. He "prays ... to be resentenced

from level 35 category III at 210 months with 2 prior convictions counted to Level 35 without the

prior conviction ... and a total of term 188 months [.]" Id. at 3-4.

          The Court construes the petition as a challenge to the legality of a criminal sentence. A

challenge of this nature must be presented to the sentencing court in a motion under 28 U.S.C. §

2255. See Ojo v. Immigration & Naturalization Serv.,106 F.3d 680,683 (5th Cir. 1997)




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(sentencing court is the only court with jurisdiction to hear the defendant's complaint regarding

errors that occurred before or during sentencing). Section 2255 provides specifically that:

                [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
                sentence was imposedjn violation of the Constitution or laws ofthe
                United States, or that the court was without jurisdiction to impose
                such sentence, or that the sentence was in excess of the maximum
                authorized by law, or is otherwise subject to collateral attack, may
                move the court which imposed the sentence to vacate, set aside or
                correct the sentence.

28 US.C. § 2255(a) (emphasis added). Moreover, the ability to challenge a conviction by a

motion to vacate sentence generally precludes a challenge by a petition for habeas corpus:

                [a]n application for a writ of habeas corpus in behalf of a prisoner
                who is authorized to apply for reliefbymotion pursuant to [28 US.c.
                § 2255], shall not be entertained if it appears that the applicant has
                failed to apply for 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 US.c. § 2255(e) (emphasis added).

        The Court therefore will dismiss the petition without prejudice. An Order consistent with

this Memorandum Opinion is issued separately on this same date.




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