Rudy Stanko, Petitioner,
v. UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

Civil ActionNo. Eric Holder, Attorney General, ) ) ) ) ) ) ) ) ) Respondent.

MEMORANDUM OPINION 

# FILED MAY - 52010 Clerk, U.S. District & Bankruptcy Courtsforthe District of Columbia 

# 10 (flUb

This matter is before the Court on its initial review ofthe "Petition for a Declaratory Judgment, or in Alternative, a Petition for the Great Writ ofHabeas Corpus" and the petitioner's application to proceed informapauperis. The Court will grant the application to proceed in formapauperis and dismiss the case for lack of jurisdiction. The petitioner challenges his 72-month prison sentence imposed in October 2006 by the United States District Courtfor the District ofNebraska, following his conviction for possession offirearms and ammunitionby a prohibitedperson. See Pet. at 5; US v. Stanko, 491 F.3d408, 410-11 (8th Cir. 2007). Thepetitioner asserts that his 1984 conviction for violating the Federal Meat InspectionAct ("FMIA"), 21 U.S.c. § 601 etseq., does not preclude him from possessing a firearm; thus, his subsequent conviction for doing so is unconstitutional. See generally Pet. at 3- 6. A challenge to a federal conviction or sentence mustbe presented to the sentencing courtby motion filed pursuant to 28 U.S.c. § 2255. See Taylor v. US Bd. of Parole, 194 F.2d 882,883 (D.C. Cir. 1952) (stating that a motion under § 2255 is the proper vehicle for challengingthe constitutionality ofa statute underwhich a defendant is convicted); O}o v. 1.NS, 106 F.3d 680,683 (5 th Cir. 1997) (explaining thatthe sentencing court is the only court withjurisdictionto hear
a defendant's complaint regarding errorsthat occurred before or during sentencing); LoBue v. Christopher, 82 F.3d 1081, 1082-84 (D.C. Cir. 1996) (determining that the district court lacked subject matterjurisdiction over a declaratoryjudgment action because the remedy of habeas corpus was available in the location ofthe plaintiffs' custodian). Section 2255 provides specifically that:

[a] prisoner in custody under sentence ofa court established by Act ofCongress claiming the right to be releasedupon the ground thatthe sentence was imposed in violation ofthe Constitution or laws ofthe United States
... or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence. 28 U.S.C. § 2255(a). Moreover, [a]n application for a writ ofhabeas corpus in behalfofa prisoner who is authorized to apply for reliefby motion pursuant to [28 U.S.c. § 2255], shall not be entertained ifit appears that the applicant has failed to apply for relief, by motion, to the court which sentenced him, orthat such court has denied him relief, unless it also appears that the remedy by motion is inadequate or ineffective to test the legality ofhis detention. 28 U.S.C. § 2255(e). The petitionerhas not shown that his available remedy is inadequate or ineffective, nor could he make such a showing since his claims have been heard by the United States Court ofAppeals for the Eighth Circuit, see Stanko, 491 F.3d at 419 (holding on direct appeal "that Stanko's FMIA convictions do not fall within 

### § 921(a)(20)(A) exclusion and, as a result, that he was aprohibited person under § 922(g)(l)"), and by the sentencing court in § 2255 proceedings, see 

# us. v. Stanko, 641 F. Supp. 2d 866,871 (D.Neb. 2009) (finding the petitioner's bill ofattainder argument "totally devoid ofmerit" because "Congress has power and authority to

2target citizens convicted ofdangerous and violent crimes and to impose the punishment oflosing their right to bear arms.") (citation omitted). Accordingly, this case is dismissed for lack of subject matterjurisdiction. 1

Date:**April~,** 2010

1 A separate Order ofaccompanies this Memorandum Opinion.
3