F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUN 30 1998
TENTH CIRCUIT
PATRICK FISHER
Clerk
ARTHUR MORRISON
Petitioner-Appellant,
v. Nos. 97-6351 & 97-6416
(D.C. No. CIV-97-1411-A)
BOB GUZIK, UNITED STATES (Western District of Oklahoma)
MARSHALS SERVICE,
Respondents-Appellees.
ORDER AND JUDGMENT *
Before PORFILIO , KELLY , and HENRY , Circuit Judges.
In case number 97-6351, Arthur Morrison appeals the district court’s
denial of his habeas corpus petition. In case number 97-6416, Mr. Morrison
appeals the district court’s order striking his “Addendum to Petition for Writ of
Habeas Corpus.” Because we hold that we lack jurisdiction over Mr. Morrison’s
*
After examining the briefs and appellate record, this panel has
determined unanimously to grant Arthur Morrison’s request for a decision on the
briefs without oral argument. This case is therefore submitted without oral
argument. This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
habeas petition, we need not determine whether the district court erred when it
struck his addendum.
In March 1997, the United States District Court for the Southern District of
New York sentenced Mr. Morrison to a term of 25 years imprisonment and three
years supervised release after a jury found that he had made threatening interstate
communications and committed wire fraud in violation of 18 U.S.C. §§ 875(c),
875(d), and 1343. Mr. Morrison appealed his conviction and sentence to the
United States Court of Appeals for the Second Circuit, and that appeal is
apparently still pending.
Following his sentencing, Mr. Morrison was temporarily held at the
Federal Transfer Center in Oklahoma City, Oklahoma. While Mr. Morrison was
being held at the Federal Transfer Center, he filed a habeas corpus petition with
the United States District Court for the Western District of Oklahoma. In this
petition, which requested relief under 28 U.S.C. § 2241, Mr. Morrison alleged
that: (1) the sentence he received exceeds the statutory maximum, and he has
already served more time than the maximum sentence allowed by law; (2) the
district court erred in departing upward from the sentencing guidelines; (3) he
was denied the effective assistance of counsel when the district court improperly
allowed him to represent himself at a competency hearing; (4) the trial judge
should have recused herself from the case; and (5) the government failed to
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establish the interstate nexus required to support his convictions. Soon after he
filed his petition, Mr. Morrison was transferred to a federal penitentiary in Terre
Haute, Indiana.
The district court referred Mr. Morrison’s petition to a magistrate judge,
who, in his report and recommendation, concluded that Mr. Morrison should have
filed his petition under 28 U.S.C. § 2255 rather than 28 U.S.C. § 2241 and
recommended that the district court dismiss the petition without prejudice. The
district court subsequently held that the petition should be dismissed without
prejudice. The district court, however, based its decision on a slightly different
ground: It ruled that it lacked jurisdiction because even if § 2241 constituted the
proper basis for Mr. Morrison’s petition, a federal district court in Oklahoma
lacked jurisdiction over the warden of a prison in Indiana (Mr. Morrison’s
current site of detention) and, thus, could not order Mr. Morrison’s release even
if it determined that his claims were meritorious.
After Mr. Morrison filed his notice of appeal, he attempted to file a
document entitled “Plaintiff’s Addendum to Petition for Writ of Habeas Corpus”
with the district court. The district court struck this document from the record on
the ground that Mr. Morrison had failed to attach a certificate of mailing to the
named defendants or their counsel. The district court subsequently refused to
issue a certificate of appealability to Mr. Morrison. Mr. Morrison now appeals
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both the district court’s decision to dismiss his petition and to strike his
addendum.
Mr. Morrison cited 28 U.S.C. § 2241 rather than 28 U.S.C. § 2255 as the
basis of his petition. It is well-established that “[a] petition under 28 U.S.C. §
2241 attacks the execution of a sentence rather than its validity and must be filed
in the district where the prisoner is confined.” See Bradshaw v. Story , 86 F.3d
164, 166 (10th Cir. 1996). On the other hand, “[a] 28 U.S.C. § 2255 petition
attacks the legality of detention and must be filed in the district that imposed the
sentence.” Id. (citation omitted).
Each of the errors that Mr. Morrison alleges in his petition occurred prior
to or during sentencing. Even his claim that he has served more than the
maximum time allowed by law does not assail the “execution” of his sentence.
Rather, this claim is ultimately predicated on his contention that the trial court
erred when it imposed a sentence that exceeded the statutory maximum. And “28
U.S.C. § 2255, not § 2241, is the proper means of attacking errors that occurred
during or before sentencing.” Ojo v. INS , 106 F.3d 680, 683 (5th Cir. 1997).
Thus, while Mr. Morrison has styled his petition as arising under § 2241, all of
the errors he alleges are properly within the province of a § 2255 petition.
While it is true that “a § 2241 petition attacking matters within the
province of a § 2255 petition should be construed as a § 2255 petition,” id. , we
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lack the jurisdiction to review a § 2255 petition attacking a sentence imposed by
a New York federal court, see Bradshaw , 86 F.3d at 166. Accordingly, we
hereby affirm the district court’s decision denying him a certificate of
appealability in case number 97-6351. And because we have determined that the
district court lacked jurisdiction to consider Mr. Morrison’s habeas corpus
petition, we dismiss his appeal in case number 97-6416 as moot. Finally, our
decision moots the motion to expedite that Mr. Morrison filed in 97-6351 as well
as his motion for reconsideration of the clerk’s denial of his motion to expedite
in 97-6416.
Entered for the Court,
Robert H. Henry
Circuit Judge
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