                                                                                          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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