                               UNITED STATES DISTRICT COURT                               FILED
                               FOR THE DISTRICT OF COLUMBIA                                 MAY - 5 2010
                                                                                     Clerk, U.S. District & Bankruptcy
 Rudy Stanko,                                  )                                     Courts for the District of Columbia
                                               )
                Petitioner,                    )
                                               )
        v.                                     )
                                               )
                                                       Civil Action No.
                                                                                10 (flUb
 Eric Holder, Attorney General,                )
                                               )
                 Respondent.                   )




                                    MEMORANDUM OPINION

        This matter is before the Court on its initial review of the "Petition for a Declaratory

 Judgment, or in Alternative, a Petition for the Great Writ of Habeas Corpus" and the petitioner's

 application to proceed in forma pauperis. The Court will grant the application to proceed in

forma pauperis and dismiss the case for lack of jurisdiction.

       The petitioner challenges his 72-month prison sentence imposed in October 2006 by the

United States District Court for the District of Nebraska, following his conviction for possession

of firearms and ammunition by a prohibited person. See Pet. at 5; US v. Stanko, 491 F.3d 408,

410-11 (8 th Cir. 2007). The petitioner asserts that his 1984 conviction for violating the Federal

Meat Inspection Act ("FMIA"), 21 U.S.c. § 601 et seq., does not preclude him from possessing a

firearm; thus, his subsequent conviction for doing so is unconstitutional. See generally Pet. at 3-

6. A challenge to a federal conviction or sentence must be presented to the sentencing court by

motion filed pursuant to 28 U.S.c. § 2255. See Taylor v. US Bd. of Parole, 194 F.2d 882,883

(D.C. Cir. 1952) (stating that a motion under § 2255 is the proper vehicle for challenging the

constitutionality of a statute under which a defendant is convicted); O}o v. 1.NS, 106 F.3d 680,
683 (5 th Cir. 1997) (explaining that the sentencing court is the only court with jurisdiction to hear

a defendant's complaint regarding errors that occurred before or during sentencing); LoBue v.

Christopher, 82 F.3d 1081, 1082-84 (D.C. Cir. 1996) (determining that the district court lacked

subject matter jurisdiction over a declaratory judgment action because the remedy of habeas

corpus was available in the location of the plaintiffs' custodian).

        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 imposed in
        violation of the Constitution or laws of the United States ... or is otherwise
        subject to collateral attack, may move the court which imposed the sentence to
        vacate, set aside or correct the sentence.

28 U.S.C. § 2255(a). Moreover,

        [a]n application for a writ of habeas corpus in behalf of a prisoner who is
        authorized to apply for relief by motion pursuant to [28 U.S.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 U.S.C. § 2255(e). The petitioner has not shown that his available remedy is inadequate or

ineffective, nor could he make such a showing since his claims have been heard by the United

States Court of Appeals for the Eighth Circuit, see Stanko, 491 F.3d at 419 (holding on direct

appeal "that Stanko's FMIA convictions do not fall within § 921 (a)(20)(A) exclusion and, as a

result, that he was a prohibited person under § 922(g)(l )"), and by the sentencing court in § 2255

proceedings, see   us.   v. Stanko, 641 F. Supp. 2d 866,871 (D.Neb. 2009) (finding the petitioner's

bill of attainder argument "totally devoid of merit" because "Congress has power and authority to




                                                   2
target citizens convicted of dangerous and violent crimes and to impose the punishment of losing

their right to bear arms. ") (citation omitted). Accordingly, this case is dismissed for lack of

subject matter jurisdiction. 1




Date: April~, 2010




        1   A separate Order of accompanies this Memorandum Opinion.


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