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GERARD RIENDEAU v. DAVID L. WINN

MEMORANDUM AND ORDER

RYA ZOBEL, District Judge

Gerard Riendeau pled guilty in the District of Rhode Island to a one-count information charging him with knowingly receiving in interstate commerce explosive materials. The Court allowed Riendeau's motion to depart and sentenced him to imprisonment for a period of six months. Riendeau filed a notice of appeal late, and the Court of Appeals dismissed the matter for lack of jurisdiction because the appeal was untimely. In the interim Riendeau began serving his sentence, apparently at the Medical Center at Fort Devens, and after dismissal of the appeal filed in this Court a petition for a writ of habeas corpus under 28 U.S.C. § 2241. The government has moved to dismiss.

The motion is allowed as this Court is without jurisdiction to grant the relief requested. Petitioner admittedly attacks the validity of the conviction, a matter that has to be raised by a motion under 28 U.S.C. § 2255 in the sentencing court, Id. ("An application for a writ of habeas corpus . . . shall not be entertained if it appears that the applicant has failed to apply for relief, by motion, to the court which sentenced him. . . ."). To the extent petitioner is trying to fit his petition under the savings clause of that section by asserting bias on the part of the trial judge, the assertion is unsupported by any facts in the petition, and does not, in any event render § 2255 ineffective or inadequate.

Through an administrative error the petition was not timely decided so that petitioner completed serving his sentence before a ruling on the petition. The court regrets the delay although it was harmless.

Judgment may be entered dismissing the petition.

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RIENDEAU v. WINN
(Mar 1, 2004)