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FILED

UNITED STATES DISTRICT COURT JAN z g 2010
FOR THE DISTRICT OF COLUMBIA Clerk, U.S. District and
bankruptcy Courts
James Cole,
Plaintiff,
v. Civil Acti0n No.  

United States Dep’t of Justice et al.,

Defendants.

MEMORANDUM OPINION

Plaintiff J ames Cole has filed an application to proceed in forma pauperis and a pro se
complaint. The application will be granted and the petition will be dismissed.

Cole is a prisoner serving a life sentence without possibility of parole. He has styled this
complaint as one challenging agency inaction in violation of the Administrative Procedure Act, 5
U.S.C. § 706. Compl. at l. According to the complaint, then-Special Agent Willie Haynes "was
able to convince" a "psychotic crack abuser to implicate" the plaintiff in a "massive cocaine
trafficking scheme," and to testify against the plaintiff at trial. Id. at 2 (spelling altered).
Apparently, plaintiff filed a complaint against Haynes with the Department of Justice, which was
"dismissed." Id. at 3. "Plaintiff believes that his  right to be heard has been violated by the
Department taking no action against Mr. Haynes or giving plaintiff a complete explanation of
why plaintiffs complaint cannot go further ...." Id. Ostensibly challenging the Department’s
decision, the complaint seeks relief that would exonerate the plaintiff of the crime for which he

was convicted. Specifically, the complaint seeks, among other things, a declaration that "J ames

Cole was falsely implicated in a drug trafficking scheme," and that Haynes provided false
evidence against the plaintiff in relation to the criminal charges brought. Id. at 4.

Despite the manner in which the plaintiff has styled his complaint, the relief sought
reveals that it is essentially a collateral attack on the plaintiff’ s criminal conviction and sentence.
See McLean v. United States, No. 90-318, 2006 WL 543999, at *l (D.D.C. Mar. 3, 2006) (noting
that a court must determine the proper characterization of a filing by the nature of the relief
sought) (citing Castro v. United States, 540 U.S. 375, 381-82 (2003)). Federal law provides that
a prisoner in custody under sentence imposed by a federal court may collaterally attack that
conviction and sentence by motion to the court that imposed the sentence. 28 U.S.C. § 2255(a);
Ojo v. Immz`gration & Naturalization Service, 106 F.3d 680, 683 (5th Cir.l997) (the sentencing
court is the only court with jurisdiction to hear defendant’s complaint regarding errors that
occurred before or during sentencing); see also Taylor v. United States Board of Par0le, 194
F.Zd 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. § 225 5).
As this court did not impose the judgment of conviction and commitment, it is without
jurisdiction to entertain this collateral attack on plaintiff s conviction. Accordingly, this
complaint, construed as a collateral attack on the plaintiffs conviction, will be dismissed without
prejudice for lack of subject matter jurisdiction.

A separate order of companies, this memorandum opinion.

Date: %, l 21 ;l D / 0 United States §istrict Ju§ge j

