815 F. 2d 81 - Wren v. L Matthews
815 F2d 81 Wren v. L Matthews
815 F.2d 81
Charles R. WREN, Jr., Petitioner-Appellant,
v.
Robert L. MATTHEWS, Warden, Federal Correctional
Institution, Lexington, Kentucky, Respondent-Appellee.
No. 86-5696.
United States Court of Appeals, Sixth Circuit.
Feb. 2, 1987.
Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
Before LIVELY, Chief Judge, and JONES and GUY, Circuit Judges.
ORDER
Advertisement
This case has been referred to a panel of the Court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination of the informal brief and record, this panel agrees unanimously that oral argument is not needed. Rule 34(a), Federal Rules of Appellate Procedure.
In this habeas corpus action filed pursuant to 28 U.S.C. Sec. 2241, petitioner purportedly challenges the execution of his sentence on the ground of sex discrimination between him and his wife, a co-defendant. The case was referred to a magistrate who recommended dismissal of the petition. Petitioner filed his objections. The district court overruled them and adopted the magistrate's recommendation and denied petitioner's motion for appointment of counsel. This appeal followed. Petitioner filed informal briefs and moves for appointment of counsel.
The record reveals that, despite petitioner's statements contrary, the petitioner alleges numerous constitutional violations at trial and before sentencing which focus on petitioner's conviction and the imposition of his sentence. They include matters such as entrapment, ineffective assistance of counsel and ex parte communication with the jury. Such violations, as they affect the validity of petitioner's conviction and sentence, should be raised in a motion under 28 U.S.C. Sec. 2255 in the trial court, and not in a petition for writ of habeas corpus under 28 U.S.C. Sec. 2241 in the district of confinement. See Cohen v. United States, 593 F.2d 766, 770 (6th Cir.1979); Miller v. United States, 564 F.2d 103 (1st Cir.1977); and Gomori v. Arnold, 533 F.2d 871 (3d Cir.1976).
Because petitioner has filed an inappropriate action in the wrong court to challenge his conviction and sentence, the district court was correct in dismissing the petition and denying the motion for appointment of counsel. An affirmance of that judgment will not, in any way, preclude petitioner from seeking relief in the trial court, the United States District Court for the Southern District of Georgia, through a motion under 28 U.S.C. Sec. 2255.
Accordingly, it is ORDERED that petitioner's motion for appointment of counsel is denied and the judgment affirmed. Rule 9(d)(3), Rules of the Sixth Circuit.