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Gonzalez v. Grondolsky

January 29, 2010

HECTOR GONZALEZ, PETITIONER,
v.
WARDEN J. GRONDOLSKY, RESPONDENT.



The opinion of the court was delivered by: Jerome B. Simandle United States District Judge

ORDER

This matter having come before the Court on Petitioner's submission of a Petition for Writ of Habeas Corpus, and it appearing that:

1. Petitioner is currently confined at the Federal Correctional Institution at Fort Dix, New Jersey;

2. Petitioner did not prepay the $5.00 filing fee for a habeas petition as required by Local Civil Rule 54.3(a);

3. Petitioner did not submit an application to proceed in forma pauperis pursuant to 28 U.S.C. § 1915(a)(1).

4. Title 28 U.S.C. § 2243 provides:

A court, justice or judge entertaining an application for a writ of habeas corpus shall forthwith award the writ or issue an order directing the respondent to show cause why the writ should not be granted, unless it appears from the application that the applicant or person detained is not entitled thereto.

(emphasis added).

5. In this Petition, Petitioner fails to identify the judgment or order that he is challenging and, presumably, pursuant to which he is confined. The Court notes that, according to the U.S. Courts' PACER system, there have been at least 176 criminal cases prosecuted against defendants named "Hector Gonzalez." This Court cannot, therefore, determine which matter pertains to the "Hector Gonzalez" who is Petitioner here.

6. Petitioner fails to provide his Inmate Identification Number. The Court notes that, according to the U.S. Bureau of Prisons Inmate Locator, the only "Hector Gonzalez" confined at the Federal Correctional Institution at Fort Dix has an Inmate Identification Number of 53497-053.

7. The Petition states that it is a petition for writ of habeas corpus ad subjiciendum and that "THIS IS NOT A §2241, §2255 OR OTHER U.S. CODE RELIEF."

"Motions pursuant to 28 U.S.C. § 2255 are the presumptive means by which federal prisoners can challenge their convictions or sentences that are allegedly in violation of the Constitution." Okereke v. United States, 307 F.3d 117, 120 (3d Cir. 2002). This is because § 2255 expressly prohibits a district court from entertaining a challenge to a prisoner's federal sentence under § 2241 unless the remedy under § 2255 is "inadequate or ineffective" to test the legality of the petitioner's detention. See 28 U.S.C. § 2255. Specifically, paragraph five of § 2255 provides:

An application for a writ of habeas corpus [pursuant to 28 U.S.C. § 2241] in behalf of a prisoner who is authorized to apply for relief by motion pursuant to this section, 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, ¶ 5; see Cradle v. U.S. ex rel. Miner, 290 F.3d 536 (3d Cir. 2002); In re Dorsainvil, 119 F.3d 245, 251 (3d Cir. 1997); Millan-Diaz v. Parker, 444 F.2d 95 (3d Cir. 1971); Application of Galante, 437 F.2d 1164 (3d Cir. 1971) (per curiam); ...


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