OpenJurist

930 F2d 921 Waterman v. Gluch

930 F.2d 921

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

John (Jack) W. WATERMAN, Petitioner-Appellant,
v.
John GLUCH, Respondent-Appellee.

No. 90-16055.

United States Court of Appeals, Ninth Circuit.

Submitted April 5, 1991.*
Decided April 15, 1991.

Before TANG, FARRIS and D.W. NELSON, Circuit Judges.

1

MEMORANDUM**

OVERVIEW

2

Petitioner John W. Waterman filed a petition for writ of habeas corpus pursuant to 28 U.S.C. Sec. 2241 and a writ of mandamus pursuant to 28 U.S.C. Sec. 1361. Waterman's petition alleged that his conviction was invalid. The district court dismissed the petition as improperly filed under 28 U.S.C. Sec. 2241. The district court held that the petition should have been filed under 28 U.S.C. Sec. 2255. The district court also held that mandamus was inappropriate because section 2255 provided an adequate remedy. We affirm.

FACTS

3

Waterman filed his petition in the United States District Court for the District of Arizona on June 7, 1990. The petition sought a writ of mandate, pursuant to 28 U.S.C. Sec. 2241, and a writ of habeas corpus, pursuant to 28 U.S.C. Sec. 1361. Waterman alleged that he was innocent of all charges filed against him in a previous trial and that irregularities had occurred during that trial, including prosecutorial misconduct and judicial bias. The district court dismissed Waterman's habeas claims because they should have been brought pursuant to 28 U.S.C. Sec. 2255.

STANDARD OF REVIEW

4

We review de novo the denial of a petition for habeas corpus under 28 U.S.C. Sec. 2241. Tripati v. Henman, 843 F.2d 1160, 1162 (9th Cir.), cert. denied, 488 U.S. 982 (1988). We review the denial of a defendant's 28 U.S.C. Sec. 2255 petition de novo. United States v. Quan, 789 F.2d 711, 713 (9th Cir.) cert. dismissed, 478 U.S. 1033 (1986). We review the denial of a writ of mandamus de novo. Pescosolido v. Block, 765 F.2d 827, 829 (9th Cir.1985).

DISCUSSION

1. Dismissal of the section 2241 claim

5

Waterman appeals the dismissal of his petition for habeas corpus pursuant to 28 U.S.C. Sec. 2241. A petition for habeas corpus under 28 U.S.C. Sec. 2241 reviews only the execution of the sentence. United States v. Giddings, 740 F.2d 770, 772 (9th Cir.1984). "A petition under [28 U.S.C.] Sec. 2241 must be addressed to the district court which has jurisdiction over [the petitioner] or his custodian." Brown v. United States, 610 F.2d 672, 677 (9th Cir.1980). Here, Waterman was incarcerated in Milan, Michigan. The petition was filed in the district of Arizona. The Arizona district court does not have jurisdiction over the appellant in this case. Therefore, his petition was appropriately dismissed.

6

The district court correctly dismissed the petitioner's petition for a second reason. The district court must dismiss a 28 U.S.C. Sec. 2241 petition that is brought to challenge the validity of a conviction for a petitioner who was sentenced by a district court outside of the jurisdiction of the court in which the petition is sought. Tripati, 843 F.2d at 1161-63. The petition pursuant to section 2255 must be brought in the original sentencing court. Id. Waterman is challenging the validity of his conviction. He was convicted in Nebraska. He applied for relief in Arizona. The Arizona district court did not have jurisdiction to entertain this challenge. Id. The district court correctly dismissed Waterman's 28 U.S.C. Sec. 2241 claim.

2. Dismissal of the Mandamus Claims

7

Waterman sought a writ of mandamus in his petition. The district court denied this relief because Waterman has an adequate remedy. "The availability of an adequate alternative remedy will ... preclude mandamus review." Nova Stylings, Inc. v. Ladd, 695 F.2d 1179, 1180 (9th Cir.1983). See also, Pescosolido, 765 F.2d at 829. Here, Waterman has the adequate alternative remedy of filing a 28 U.S.C. Sec. 2255 petition in Nebraska.

8

Waterman's petition implies that he does not have an adequate remedy in the Eighth Circuit because a previous opinion which reversed his conviction was overturned by the Eighth Circuit, en banc. "A remedy is not inadequate or ineffective under section 2255 merely because the sentencing court denied relief on the merits." Tripati, 843 F.2d at 1162. The fact that Waterman's post-conviction relief was denied on the merits thus does not establish that he has no effective remedy.

9

Waterman also suggests he has no alternative adequate remedy because the Nebraska district court will not rule on his 28 U.S.C. Sec. 2255 petition that he previously filed there. Madsen v. Hinshaw, 237 F.2d 370, 371 (9th Cir.1956), cited with approval in Tripati, 843 F.2d at 1163, is dispositive of this contention. The Madsen court held that the district court's "prolonged and stubborn refusal" to rule on the section 2255 motion did not render the remedy inadequate because a writ of mandamus to that court could make the section 2255 remedy effective. Madsen, 237 F.2d at 371; Tripati, 843 F.2d at 1163.

10

The district court correctly dismissed the petition for a writ of mandamus on the ground that Waterman had adequate alternative remedies, namely a 28 U.S.C. Sec. 2255 petition filed in Nebraska. If the Nebraska court will not rule on his petition, he may seek a writ of mandamus from the Eighth Circuit to compel that action.

CONCLUSION

11

The district court correctly dismissed Waterman's petition for a writ of habeas corpus and for a writ of mandamus.

12

AFFIRMED.

*

The panel unanimously agrees that this case is appropriate for submission without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4

**

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3