UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-7034
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
FRANK LATHAN HINTON,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Raymond A. Jackson, District
Judge. (2:94-cr-00106-RAJ-1; 2:94-cv-01224)
Submitted: September 10, 2009 Decided: October 2, 2009
Before WILKINSON and MOTZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed as modified by unpublished per curiam opinion.
Frank Lathan Hinton, Appellant Pro Se. Dana James Boente,
Acting United States Attorney, Alexandria, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Frank Lathan Hinton appeals a district court order
construing his pleading as being filed under 28 U.S.C.A. § 2255
(West Supp. 2009) and dismissing the pleading without prejudice
because it was a second or successive § 2255 motion and this
court had not authorized the filing. We have reviewed the
record and Hinton’s pleading and find that it should have been
construed as a petition for a writ of habeas corpus under 28
U.S.C. § 2241 (2006) because Hinton was challenging the
execution of his sentence, claiming his sentence was complete.
In re Vial, 115 F.3d 1192, 1194 n.5 (4th Cir. 1997) (“[A]ttacks
on the execution of a sentence are properly raised in a § 2241
petition.”). However, Hinton should have filed the § 2241
petition in the district in which he is currently confined. In
re Jones, 226 F.3d 328, 333 (4th Cir. 2000); see also Rumsfeld
v. Padilla, 542 U.S. 426, 447 (2004) (“Whenever a § 2241 habeas
petitioner seeks to challenge his present physical custody
within the United States, he should name his warden as
respondent and file the petition in the district of
confinement.”). Thus, regardless of whether the pleading was a
§ 2255 motion or a § 2241 petition, the district court did not
have jurisdiction. Hinton is currently confined in a federal
penitentiary in West Virginia and he filed his petition in the
Eastern District of Virginia. United States v. Poole, 531 F.3d
2
263, 273-74 (4th Cir. 2008) (nothing in the habeas corpus
statute that would allow the court that originally sentenced the
petitioner to have jurisdiction over the § 2241 petition). Even
if his pleading was properly construed as a § 2255 motion, the
district court did not have jurisdiction because this court did
not give authorization under 28 U.S.C. § 2244 (2006) and § 2255
to file a second or successive motion.
Accordingly, because the district court did not have
jurisdiction over the petition because Hinton was challenging
the execution of his sentence, we deny the application for a
certificate of appealability as moot and affirm the district
court’s order as modified. * 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 AS MODIFIED
*
We note Hinton currently has a 28 U.S.C. § 2241 (2006)
petition pending in the United States District Court for the
Northern District of West Virginia that was transferred from the
United States District Court for the Eastern District of
Virginia. See Hinton v. Warden, United States Penitentiary –
Hazelton, No. 2:09-cv-00096-REM-JES (N.D. W. Va.). The
disposition of this appeal shall have no bearing on that case.
3