IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

ANDREW TAGHON )

)

Petitioner, )

)

vs. ) CAUSE NO. 2:16-cv-81

 )

WARDEN, FEDERAL )

CORRECTIONAL )

INSTITUTION-JESUP, )

)

Respondent. )

OPINION AND ORDER

This matter is before the Court on the Petition for a Writ of

Habeas Corpus Under 28 U.S.C. § 2241, filed by Petitioner, Andrew

Taghon, on May 26, 2015 (DE #1). For the reasons set forth below,

the habeas petition (DE #1) is DENIED AND DISMISSED WITHOUT

PREJUDICE.

Taghon filed the instant petition for writ of habeas corpus on

May 26, 2015, in the Southern District of Georgia, while he was

incarcerated there. (DE #1.) He has since been transferred back

to the Northern District of Indiana.

The Government moved to dismiss his section 2241 petition,

arguing the court lacked jurisdiction because Taghon could have

raised his claim in a motion to vacate his sentence under 28 U.S.C.

§ 2255. (DE #8.) On October 19, 2015, during the pendency of this

2241 petition, Taghon filed a section 2255 motion in the Northern
District of Indiana (the district of his conviction), which is

currently pending before the Honorable Philip P. Simon, Case No.

2:07-cr-149. Taghon makes essentially the same arguments in the

habeas petition as the section 2255 petition. He asserts the

United States Supreme Court’s decision in Skilling v. United

States, 561 U.S. 358 (2010), renders the basis of his conviction

under the honest services fraud count (18 U.S.C. § 1343)

nonexistent and makes him “actually innocent.” Because Taghon was

transferred back to the Northern District of Indiana, the Southern

District of Georgia determined that it did not have jurisdiction

over the 2241 motion. (DE ##14, 15.) That Court transferred the

2241 petition to this Court, and stated this Court should dismiss

the 2241 petition. (DE ##14, 15, 16.) 

A petitioner challenging his conviction or sentence under

section 2241 must first demonstrate that his remedy under section

2255 is truly inadequate or ineffective. Taylor v. Warden, FCI

Marianna, 557 F. App’x 911, 913 (11th Cir. 2014); see also Hill v.

Werlinger, 695 F.3d 644, 647-48 (7th Cir. 2012) (Section 2255

applies to challenges to the validity of convictions and sentences,

whereas section 2241 applies to challenges to the fact or duration

of confinement; federal prisoner may use a section 2241 petition

for a writ of habeas corpus to attack his conviction or sentence

only if section 2255 is inadequate or ineffective). When prisoners

“have filed § 2241 petitions challenging their convictions and

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sentences while they were simultaneously seeking relief via § 2255

motions [] this Court has consistently denied their § 2241

petitions as premature.” Colbert v. Ives, 2013 WL 1856080, No. 12-

99-GFVT, at *4 (E.D. Ky. Apr. 30, 2013) (citing Besser v. Holland,

2011 WL 3608498, No. 11-CV-70-HHRW, at *2-3 (E.D. Ky. Aug. 16,

2011) (dismissing § 2241 petition as premature pending resolution

of petitioner’s § 2255 motion in the sentencing court), aff’d, 2012

WL 4121122 (6th Cir. Sept. 20, 2012); Brandon v. Holland, 2011 WL

87183, No. 10-117-DLB, at *1 (E.D. Ky. Jan. 6, 2011) (same); White

v. Grondolsky, 2006 WL 2385358, No. 6:06-309-DCR, at *2 (E.D. Ky.

Aug. 17, 2006) (same)). “[T]he Petitioner must first pursue his

trial court remedy under § 2255 before he may seek relief under §

2241.” Grondolsky, 2006 WL 2385358, at *3; see also Knutson v.

Hood, 18 Fed. App’x 528, 529 (9th Cir. 2001) (finding petitioner

could not file a section 2241 petition before his direct appeal was

completed and before he filed a section 2255 motion raising those

claims). 

Taghon’s habeas petition will therefore be dismissed without

prejudice. If he so chooses, Taghon may file another petition

under section 2241 after the sentencing court has addressed the

section 2255 motion. 

DATED: August 30, 2016 /s/ RUDY LOZANO, Judge

United States District Court

 

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