### William

### J.R. Embrey, Petitioner, 

### v. The United States et al., Respondents. UNITED STATES DISTRICT COURT FORTHE DISTRICT OF COLUMBIA

Civil Action No.

MEMORANDUM OPINION 

# FILED JAN L

## 3 lUW Clerk, U.S. District ana Bankruptcy Courts 

# 10 

# 0171

Petitioner William Embrey has filed an applicationto proceed in forma pauperis and a pro se "Petition for a Permanent Injunction against Each ofthe Named Respondents." The application will be granted and the petition will be dismissed. Embrey is a prisoner under sentence imposed by the United States District Court for the Western District ofMissouri. He is currently incarcerated at the Federal correctional institution in Ashland, Kentucky. In a submission styled a ''''Petition for a Permanent Injunction," and emphasizing that it "does not attack [Embrey's] conviction or his sentence[,]" Embrey asks this Court to order "boththe United States and its Attorney General and their agents to refrain from continuing their imprisonment" ofhim. Pet. at 1. Appending a transcript ofhis guilty plea colloquy, Embrey asserts that the United States never established one ofthe elements ofthe offense to which he pled guilty. See id. at 5-6. "[

A]s a matter ofCongressional intent, prisoners mounting a challenge to the lawfulness oftheir custody are to proceed by means ofhabeas." Chatman-Bey v. Thornburgh, 864 F.2d 804, 809 (D.C. Cir. 1988). Embrey is a prisonermounting a challenge to the lawfulness ofhiscustody; indeed, his bald assertions to the contrary notwithstanding, the petition is a collateral attack onhis conviction and sentence. As such, itmust first be exhausted as a motion under 28 U.S.C. 

### § 2255 lodged with the sentencing court; only thereafter, and only ifthe prisoner can show that the remedy under § 2255 is inadequate or ineffective, the challenge canbe made under 28 U.S.C. § 2241 as a petition for a writ ofhabeas corpus lodged in the district courtthat has personaljurisdictionoverthe prisoner's immediate custodian. 

### See 28 U.S.C. 

### § 2255; 

### Wilson v. 

### Office o/Chairperson, Dist. o/ColumbiaBd o/Parole, 892 F. Supp. 277,279 (D.D.C. 1995) ("[A] decision on a 

### § 2255 motion is ordinarily required before a federal court will entertain a habeas petition."); 

### Chatman-Bey, 864 F.2d at 810 "[A] district court may not entertain a habeas corpus action unless it has personaljurisdictionoverthe custodian oftheprisoner.
... 

### Itis also well settled that the appropriate defendant in a habeas action is the custodian ofthe prisoner.") (internal quotation marks and citations omitted); 

### see also slip op., 

### Embrey v. 

### Cauley, Civil ActionNo. 09-cv-78-HRW, 2009 WL 3586253 (E.D. Ky. Oct. 28,2009) (advising Embrey ofhis remedies and noting his history ofabuse ofthe remedies inthe district courts in the Fifth, Sixth, Seventh and Eighth Circuits, as well as the District ofColumbia). As this Court does not have jurisdictionover either a motion filed by Embrey under 28 U.S.C. 

### § 2255 or a petition filed by Embrey for habeas reliefunder 28 U.S.C. 

### § 2241, Embrey's petition will be dismissed for lack of jurisdiction. A separate order ofcompanies, this memorandum opinion.

## Date:~ I 

## If J )..OJ0 

# (]L;

# ~~-**~** United States DiStrict Judge

- 2 -