The opinion of the court was delivered by: Daniel L. Hovland, Chief Judge United States District Court
ORDER DISMISSING PETITIONER'S MOTION FOR HABEAS RELIEF
Before the Court is the Petitioner's motion for habeas corpus relief filed on December 12, 2008. See Docket No. 5. The petitioner, Timothy White Body, Jr., originally filed the motion pursuant to 28 U.S.C. § 2241. However, after a review of the motion, the Court concluded the motion should be reclassified as a 28 U.S.C. § 2255 motion for habeas corpus relief. On March 2, 2009, the Court informed White Body of his right to consent to the reclassification of the Section 2241 motion to a Section 2255 motion or to withdraw the Section 2241 motion. See Docket No. 6. White Body was given until April 24, 2009, to inform the Court in writing of his decision to either consent to the reclassification of the habeas motion or to withdraw the motion. On March 12, 2009, White Body requested another copy of the Court's March 2, 2009, order because the original copy sent to him had been damaged. See Docket No. 7. On March 12, 2009, the Clerk of Court's Office sent White Body another copy of the order. More than two months have passed and White Body has failed to inform the Court of his decision. Therefore, the Court will treat White Body's filing as a Section 2255 motion. The motion is dismissed for the reasons set forth below.
Timothy White Body was indicted on three counts of sexual abuse (counts one through three) and two counts of abusive sexual contact (counts four and five). See United States v. White Body, Case No. 4:06-cr-033, Docket No. 1. White Body entered into an agreement with the Government pursuant to which he pled guilty to counts two and three. See id., Docket No. 13. In return, the Government moved to dismiss counts one, four, and five. See id., Docket No. 21. The Court entered judgment on December 18, 2006, imposing concurrent seventy-month sentences on counts two and three, with credit for time served. See id., Docket No. 22. White Body did not appeal. White Body is presently incarcerated in a federal prison in Colorado.
On December 12, 2008, White Body filed a motion for habeas corpus relief. See Docket No. 5. White Body essentially contends that he was prosecuted for the same offenses in both tribal and federal court in violation of the Fifth Amendment's double jeopardy clause.
Claims asserted by a prisoner who challenges the legality of a sentence must be filed by motion under 28 U.S.C. § 2255 in the district that imposed the sentence. In contrast, claims that challenge the execution or manner in which a sentence is served must be submitted by a motion pursuant to 28 U.S.C. § 2241 and filed in the district where the prisoner is confined. White Body is not confined in the District of North Dakota. If White Body has claims concerning the lawfulness of his detention or the execution of his sentence that are actionable under 28 U.S.C. § 2241, he should submit such a motion to the United States District Court in Colorado with jurisdiction over the federal prison in which he is incarcerated. To the extent that White Body's motion may be construed as a challenge to the legality of his sentence, the motion is dismissed.
A. WHITE BODY'S PETITION IS UNTIMELY
It is well-established that motions to vacate, set aside or correct sentence filed pursuant to 28 U.S.C. § 2255 are subject to the following period of limitations:
(f) A 1-year period of limitation shall apply to a motion under this section. The limitation period shall run from the latest of-
(1) the date on which the judgment of conviction becomes final;
(2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action;
(3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(4) the date on which the facts supporting the claim or claims presented could have been discovered through ...