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Samuel Opara v. United States of America

December 14, 2010

SAMUEL OPARA, PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENTS.



The opinion of the court was delivered by: Simandle, District Judge:

NOT FOR PUBLICATION

OPINION

APPEARANCES:

Petitioner Samuel Opara, a prisoner currently confined at FCI Fort Dix, has submitted a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241*fn1 naming the United States of America as the sole respondent to the Petition. Respondent made an application for leave to file a Motion to Dismiss in Lieu of Answer. The Court granted Respondent's request and the motion was filed on June 29, 2010.

Because this Court lacks jurisdiction to consider this Petition, and because it is not in the interest of justice to transfer the Petition, this Court will grant the Motion to Dismiss and dismiss the Petition for lack of jurisdiction.

I. BACKGROUND

Petitioner is presently confined pursuant to a federal drug crime conviction and sentence imposed by the United States District Court for the Northern District of Indiana. Opara was convicted of conspiracy to possess with intent to distribute 50 grams or more of cocaine base, a violation of 21 U.S.C. §§ 841(a)(1) and 846 (Count 1); four counts of distributing more than five grams of cocaine base, a violation of 21 U.S.C. § 841(a)(Counts 2 through 5); and maintaining a crack house, a violation of 21 U.S.C. § 856(a)(1) (Count 6). He was sentenced on September 1, 2000 to 240 months on Count 1 and 120 months each for Counts 2 through 6. The sentence for Count 1 was to be served consecutively to the sentence for Count 2 through 6, which were to be served concurrently to each other. For Counts 1 through 5, Opara was sentenced to 5 years supervised release, and 3 years supervised release for Count 6, with all terms running concurrently.*fn2

The Seventh Circuit Court of Appeals heard Petitioner's appeal of his conviction and sentence. That court set aside the conviction for Count 6, rejected Petitioner's other issues on appeal and affirmed the sentence.*fn3

Petitioner has appealed his conviction and sentence*fn4 and filed numerous motions to challenge his conviction and sentence, including motions that were filed pursuant to 28 U.S.C. § 2255 and motions that have been construed to be filed under § 2255.*fn5

Petitioner claims the following in his pending § 2241: (1) that the judgment was not properly entered on the docket, (2) that the prosecutor engaged in misconduct, (3) that the police officer witness committed perjury, (4) that evidence was fabricated, (5) that arrest warrants for Opara and his co- defendant were obtained illegally, (6) the search warrant for Opara's residence was illegally obtained, (7) the search warrant for Opara's co-defendant's residence was illegally obtained, and (8) the district court abused its discretion in granting the dismissal of Opara's original indictment.

II. DISCUSSION

A. Standard of Review

Petitioner brings his Petition for a Writ of Habeas Corpus as a pro se litigant. A pro se pleading is held to less stringent standards than more formal pleadings drafted by lawyers. Estelle v. Gamble, 429 U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520 (1972). A pro se habeas petition and any supporting submissions must be construed liberally and with a measure of tolerance. See Royce v. Hahn, 151 F.3d 116, 118 (3d Cir. 1998); Lewis v. Attorney General, 878 F.2d 714, 721-22 (3d Cir. 1989); United States v. Brierley, 414 F.2d 552, 555 (3d Cir. 1969), cert. denied, 399 U.S. 912 (1970).

United States Code Title 28, Section 2244(b)(3)(A), provides that "Before a second or successive application permitted by this section is filed in the district court, the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application." If a second or successive petition is filed in the district court without such an order from the appropriate court of appeals, the district court may dismiss for want of jurisdiction or "shall, if it is in the interest of justice, transfer ...


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