Franklin v. Hudson

SUMMARY ORDER UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the orders of the district court are AFFIRMED. Darryl Lamont Franklin, pro se, appeals the district court’s October 7, 2013 dismissal of his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241, and its subsequent orders denying reconsideration and a certificate of appealability (“COA”) entered on October 23, 2013, and December 3, 2013, respectively. ** We as *51 sume the parties’ familiarity with the facts and underlying proceedings. We review de novo a district court’s denial of a petition for a writ of habeas corpus brought pursuant to 28 U.S.C. § 2241. See, e.g., Sash v. Zenk, 428 F.3d 132, 134 (2d Cir.2005). A motion pursuant to § 2255 is the proper means to challenge the imposition of a federal conviction and sentence, whereas a petition pursuant to § 2241 is the proper means to challenge the execution of a federally-imposed sentence. Adams v. United States, 372 F.3d 132, 134-35 (2d Cir.2004). District courts lack jurisdiction to consider second or successive § 2255 motions unless the movant has obtained authorization from the appropriate court of appeals. Carmona v. United States, 390 F.3d 200, 201-02 (2d Cir.2004). A federal prisoner may challenge the validity of his conviction under § 2241 if he establishes that § 2255 is “inadequate or ineffective to test the legality of his detention.” 28 U.S.C. § 2255(e); Cephas v. Nash, 328 F.3d 98, 104 (2d Cir.2003). However, “when a prisoner files a § 2241 petition in an attempt to evade § 2255’s limits on. second or successive petitions, and when the petitioner has already had a prior § 2255 petition dismissed on the merits ..., the district court can treat the § 2241 petition as a second or successive § 2255 petition and refer the petition to this court for certification ... or, if it is plain from the petition that the prisoner cannot demonstrate that a remedy under § 2255 would be inadequate or ineffective to test the legality of his detention, the district court may dismiss the § 2241 petition for lack of jurisdiction.” Adams, 372 F.3d at 136. A COA is not required to appeal the dismissal of a § 2241 petition. Murphy v. United States, 199 F.3d 599, 601 n. 2 (2d Cir.1999). Here, an independent review of the record and relevant case law reveals that the district court properly dismissed Franklin’s § 2241 petition for lack of jurisdiction consistent with the procedure set forth in Adams, 372 F.3d at 136. We affirm the dismissal order for substantially the same reasons stated by the district court in its October 7, 2013 order. We also detect no error in the district court’s denial of reconsideration and Franklin’s request for a COA. Accordingly, we also affirm the court’s October 23, 2013, and December 3, 2013 orders. We have considered Franklin’s remaining arguments and find them to be without merit. Accordingly, we AFFIRM the orders of the district court. Footnotes [**] We construe Franklin's October 30, 2013 COA motion in this Court as a timely notice of appeal from the district court’s dismissal of his § 2241 petition and denial of reconsidera *51 tion. See Marmolejo v. United States, 196 F.3d 377, 378 (2d Cir.1999) (per curiam).