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HERNANDEZ v. U.S.

United States District Court, S.D. New York


April 15, 2005.

PEDRO ANTONIO HERNANDEZ, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

The opinion of the court was delivered by: LEWIS KAPLAN, District Judge

ORDER

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 sentencing.*fn1

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 2720.

  For the foregoing reasons, this petition is dismissed for lack of jurisdiction.

  SO ORDERED.


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