United States District Court, S.D. New York
April 15, 2005.
PEDRO ANTONIO HERNANDEZ, Movant,
UNITED STATES OF AMERICA, Respondent.
The opinion of the court was delivered by: LEWIS KAPLAN, District Judge
Defendant was sentenced on March 19, 2003 for illegally
reentering the United States to a term of imprisonment of 77
months. He now moves for review of his sentence pursuant to
28 U.S.C. § 2255, arguing that the Bureau of Prisons will not give
him credit for time spent in federal custody prior to
Section 2255 provides that an individual in federal custody
under sentence of a federal court "may move the court which
imposed the sentence to vacate, set aside or correct the
sentence" on the ground that "the sentence was imposed in
violation of the Constitution or laws of the United States, or
that the court was without jurisdiction to impose such sentence,
or that the sentence was in excess of the maximum authorized by
law, or is otherwise subject to collateral attack."
28 U.S.C. § 2255. Federal prisoners therefore generally must use a Section
2255 motion to challenge their conviction as violative of the laws or
Constitution of the United States. See Jiminian v. Nash,
245 F.3d 144, 147 (2d Cir. 2001).
A petition for a writ of habeas corpus pursuant to
28 U.S.C. § 2241, in contrast, is used by an individual in federal custody to
attack the execution of a sentence, including such matters as the
administration of parole, computation of the sentence, transfers
between prisons, and conditions of detention. See Jiminian,
245 F.3d at 146 (2d Cir. 2001); Chambers v. United States,
106 F.3d 472, 474-75 (2d Cir. 1997). As petitioner is challenging the
computation of his sentence and not its legality, a petition
pursuant to Section 2241 is the proper vehicle.
Having determined that this motion should be construed as one
under Section 2241, the next issue is whether the Court has
jurisdiction over such a petition. Where, as here, a petitioner
challenges his present custody, the only court with jurisdiction
is that in the district of his confinement. Padilla v.
Rumsfeld, ___ U.S. ___, 124 S.Ct. 2711, 2722-23 (2004).
Petitioner here is confined at FCI Elkton in Lisbon, Ohio,
located within the jurisdiction of the United States District
Court for the Northern District of Ohio. Accordingly, this Court
does not have jurisdiction over the petition and it must be
brought in the district of petitioner's confinement, naming as
respondent the warden of his correctional institution. Id. at
For the foregoing reasons, this petition is dismissed for lack