United States District Court, D. Massachusetts
September 11, 2014
STEVEN L. MOREHOUSE,
ORDER ON REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE
RICHARD G. STEARNS, District Judge.
I agree with the Magistrate Judge Dein's Report insofar as she notes that the petition is improperly brought under 28 U.S.C. § 2241. The exclusive remedy for an illegal sentence, including allegations of the improper application of a sentencing enhancement, is under 28 U.S.C. § 2255. See United States v. Barrett, 178 F.3d 34, 51 (1st Cir. 1999). A petition under § 2255 may be brought only in the jurisdiction in which the sentencing took place. Id. at 50, n.10, citing United States v. DiRusso, 535 F.2d 673, 675-676 (1st Cir. 1976). Because this is a matter of jurisdictional authority and not mrere form, the court does not have the power to transfer the case to the First Circuit Court of appeals (as the Magistrate Judge recommends). Consequently, the Recommendation is REJECTED and the petition is DISMISSED. Any request for the issuance of a Certificate of Appealability pursuant to 28 U.S.C. § 2253 is DENIED, the court seeing no meritorious or substantial basis supporting an appeal of this decision. The Clerk is instructed to close the case.