Thursday, March 3, 2011

State prisoner may not challenge the execution of his sentence under § 2241

Tippett v. McCall, No. 1:09-593-HMH-SVH, 2011 WL 441942 (D.S.C. Feb. 7, 2011):

As a preliminary matter, the court must determine whether § 2241 is the appropriate jurisdictional statute for Tippett to challenge the SCDC's computation of his armed robbery sentence.  The United States Court of Appeals for the Fourth Circuit has not considered the issue of whether a prisoner who is incarcerated pursuant to the judgment of a state court may challenge the execution of his sentence under § 2241.  However, a majority of the circuit courts of appeals that have addressed the issue have held that a state prisoner seeking federal post-conviction habeas relief must proceed under 28 U.S.C. § 2254.  See White v. Lambert, 370 F.3d 1002, 1005 (9th Cir. 2004), overruled on other grounds by, Hayward v. Marshall, 603 F.3d 546, 553 (9th Cir. 2010) (en banc); Medberry v. Crosby, 351 F.3d 1049, 1062 (11th Cir. 2003); James v. Walsh, 308 F.3d 162, 167 (2d Cir. 2002); Crouch v. Norris, 251 F.3d 720, 723 (8th Cir. 2001); Coady v. Vaughn, 251 F.3d 480, 485 (3d Cir. 2001); Walker v. O'Brien, 216 F.3d 626, 633 (7th Cir. 2000)But see Montez v. McKinna, 208 F.3d 862, 865 (10th Cir.2000).  The court concludes that § 2254 is the exclusive avenue for Tippett to seek habeas relief and therefore recharacterizes his filing as a § 2254 petition.

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