UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-1191
RANDY LEE HAMMITT,
Petitioner - Appellant,
versus
UNITED STATES PROBATION OFFICE; D. MARK HALL;
JAMES KENT,
Respondents - Appellees.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Graham C. Mullen, Senior
District Judge. (3:07-cv-00065)
Submitted: July 31, 2007 Decided: August 9, 2007
Before MOTZ and TRAXLER, Circuit Judges, and WILKINS, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Randy Lee Hammitt, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Randy Lee Hammitt appeals from the district court’s
dismissal of his petition under 28 U.S.C. § 2241 (2000),1 in which
Hammitt challenged his conviction for criminal contempt. The
district court concluded that it lacked jurisdiction over the
petition because Hammitt was neither incarcerated when his § 2241
petition was considered nor incarcerated at the time that he filed
the petition. The district court held in the alternative that even
if Hammitt were considered to be in custody, he had failed to raise
any meritorious claims in his petition. Upon review of the record,
we find that while the district court possessed jurisdiction over
Hammitt’s petition,2 Hammitt’s claims are not cognizable under
§ 2241.
1
Hammitt’s § 2241 petition was originally filed with this
court; however, we declined to exercise our authority to entertain
the petition and transferred it back to the district court for
consideration pursuant to Fed. R. App. P. 22(a). In re Hammitt,
No. 06-7877 (4th Cir. Jan. 22, 2007) (unpublished).
2
A petitioner is not required to be subject to imprisonment to
be regarded as in custody; rather, the relevant query is whether
the petitioner’s status subjects him to a restraint on his liberty,
or the imminent threat of such a restraint. See Jones v.
Cunningham, 371 U.S. 236, 242 (1963). For the purposes of relief
under the federal habeas corpus statutes, probation constitutes
custody, as a probationer is subject to restraints not shared by
the public generally. See Olson v. Hart, 965 F.2d 940, 943-44
(10th Cir. 1992); Tinder v. Paula, 725 F.2d 801, 803 (1st Cir.
1984); Hahn v. Burke, 430 F.2d 100, 102 (7th Cir. 1970). In
October 2006, Hammitt was sentenced to probation for a term of one
year, with six months’ home detention. Hammitt’s status as a
probationer at the time he filed his petition was sufficient to
meet the “in custody” requirement for proceeding under § 2241(c).
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A federal prisoner seeking to challenge the legality of
his conviction or sentence must proceed pursuant to 28 U.S.C.
§ 2255 (2000) in the district of conviction, while § 2241 petitions
are generally reserved for challenges to the execution of a
prisoner’s sentence. In re Vial, 115 F.3d 1192, 1194 n.5 (4th Cir.
1997). However, in limited circumstances, § 2255 is “inadequate or
ineffective” to test the legality of the detention. In those
cases, a prisoner may file a § 2241 petition in the district of his
confinement to challenge his conviction. In re Jones, 226 F.3d
328, 333 (4th Cir. 2000). In Jones, this court concluded that
§ 2255 is inadequate or ineffective, and § 2241 may be used:
to test the legality of a conviction when: (1) at the time of
conviction, settled law of this circuit or the Supreme Court
established the legality of the conviction; (2) subsequent to
the prisoner’s direct appeal and first § 2255 motion, the
substantive law changed such that the conduct of which the
prisoner was convicted is deemed not to be criminal; and
(3) the prisoner cannot satisfy the gatekeeping provisions of
§ 2255 because the new rule is not one of constitutional law.
Jones, 226 F.3d at 333-34.
Hammitt’s § 2241 petition challenged the legality of his
conviction, not the execution of his sentence; therefore, Hammitt’s
claims should have been presented in a motion under § 2255. See
Vial, 115 F.3d at 1194 n.5. Additionally, Hammitt’s petition
failed to demonstrate that § 2255 would be inadequate or
ineffective to test the legality of his detention. See Jones, 226
F.3d at 333. Therefore, Hammitt has failed to establish any proper
grounds for relief pursuant to §2241.
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Accordingly, we affirm the district court’s order. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
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