                                                                                         FILED
                              UNITED STATES DISTRICT COURT                               AUG 1'2    aOf
                              FOR THE DISTRICT OF COLUMBIA                        Clerk, U.S. District and
                                                                                    Bankruptcy Courts

Herbert Chavis,                               )
                                              )
               Petitioner,                    )
                                              )
       v.                                     )         Civil Action No.       09 1522
                                              )
United States of America,                     )
                                              )
                Respondent.                   )




                                  MEMORANDUM OPINION

        This matter is before the Court on petitioner's application for a writ of habeas corpus and

his application to proceed informa pauperis. The Court will grant the application to proceed in

forma pauperis and dismiss the case for lack of jurisdiction.

       Petitioner claims that the United States District Court for the Middle and Western

Districts of North Carolina ignored his "colorable innocence claims." Pet. at 5. A claim, such as

this one, challenging a judgment of conviction must be presented to the sentencing court by

motion filed pursuant to 28 U.S.C. § 2255. See Taylor v. United States Board of Parole, 194

F.2d 882, 883 (D.C. Cir. 1952) (motion under § 2255 is proper vehicle for challenging

constitutionality of statute under which defendant is convicted); Ojo 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). 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, 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 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). Petitioner has not shown that his available remedy is inadequate or

ineffective.

        Because this Court is not the sentencing court, see Pet. at 2, it is without jurisdiction to

entertain petitioner's claim. To the extent that petitioner is seeking review of his sentencing

court's denial of § 2255 relief, see Pet. at 3, his recourse lies presumably in the United States

Court of Appeals for the Fourth Circuit. A separate order of dismissal accompanies this

Memorandum Opinion.




Date: August ~, 2009




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