[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-10760 ELEVENTH CIRCUIT
Non-Argument Calendar AUGUST 20, 2010
________________________ JOHN LEY
CLERK
D.C. Docket No. 9:99-cr-08078-WPD-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
WILLIAM ANDREW KINSEY, III,
l Defendant - Appellant.
lllllll
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(August 20, 2010)
Before BLACK, WILSON and PRYOR, Circuit Judges.
PER CURIAM:
William Andrew Kinsey, III, challenges the district court’s dismissal of his
motion, which he had styled a “motion for clarification.” In his motion, he argued
that the language of his judgment of conviction does not clearly indicate that his
restitution payments are to begin while he is incarcerated. On appeal, he argues
that the district court improperly dismissed his motion and characterized it as a
successive motion to vacate filed pursuant to 28 U.S.C. § 2255.
Whether a district court has jurisdiction is a question of law subject to de
novo or plenary review. See, e.g., United States v. Diaz-Clark, 292 F.3d 1310,
1315 (11th Cir. 2002) (holding that a district court’s determination of its
jurisdiction to resentence a defendant is subject to plenary review). We may
review a district court’s jurisdiction sua sponte. See United States v. Straub, 508
F.3d 1003, 1008 (11th Cir. 2007).
Federal courts may “ignore the legal label that a pro se litigant attaches to a
motion and recharacterize the motion in order to place it within a different legal
category.” Castro v. United States, 540 U.S. 375, 381, 124 S. Ct. 786, 791 (2003).
“They may do so in order to avoid an unnecessary dismissal, to avoid
inappropriately stringent application of formal labeling requirements, or to create a
better correspondence between the substance of a pro se motion’s claim and its
underlying legal basis.” Id. at 381–82, 124 S. Ct. at 791–92 (internal citations
omitted). However, before recharacterizing a motion as an initial § 2255 motion,
the district court must provide the defendant with notice of its intended
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recharacterization and an opportunity to withdraw or amend the motion. Id. at
384, 124 S. Ct. at 793. According to 28 U.S.C. § 2255(a):
A prisoner in custody under sentence of a court . . . claiming the right
to be released upon 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, may move the court which
imposed the sentence to vacate, set aside or correct the sentence.
A federal prisoner who wishes to file a second or successive motion to vacate, set
aside, or correct a sentence is required to move the Court of Appeals for an order
authorizing the district court to consider such a motion. See 28 U.S.C. § 2255(h),
cross-referencing 28 U.S.C. § 2244 (as amended).
However, an action brought pursuant to 28 U.S.C. § 2241 is the proper
vehicle to challenge the execution of a sentence, rather than the validity of the
sentence itself. Antonelli v. Warden, U.S.P. Atlanta, 542 F.3d 1348, 1352 (11th
Cir. 2008) (citation omitted). It is the appropriate means by which an inmate may
challenge the Bureau of Prison’s (“BOP”) calculation and execution of his
sentence. See Bishop v. Reno, 210 F.3d 1295, 1304 n.14 (11th Cir. 2000). Unlike
§ 2255 motions, motions made pursuant to § 2241 must be brought “only in the
district court for the district in which the inmate is incarcerated.” Fernandez v.
United States, 941 F.2d 1488, 1495 (11th Cir. 1991); 28 U.S.C. § 2241(d).
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Kinsey did not contest the validity of the district court’s order of restitution
or underlying conviction in his motion. Indeed, were he to raise such a challenge
under either § 2241 or § 2255, it would be foreclosed. See Arnaiz v. Warden, Fed.
Satellite Low, 594 F.3d 1326, 1329–30 (11th Cir. 2010) (per curiam). Instead, he
contests the administration of a concededly valid order. His motion does not fall
within the ambit of § 2255, but it is an attack on the BOP’s execution of his
sentence, under § 2241. See, e.g., Bishop, 210 F.3d at 1304 n.14 (considering the
BOP’s administration of service credits under § 2241, per 18 U.S.C. § 3624).
The Southern District of Florida is not the appropriate venue for Kinsey’s
motion because Kinsey was incarcerated at the federal penitentiary in Atlanta
when he filed his motion. Petitions under § 2241 may be brought only in the
district in which the inmate is incarcerated. Fernandez, 941 F.2d at 1495; 28
U.S.C. § 2241(d). Therefore, the District Court for the Southern District of
Florida did not have jurisdiction to entertain a § 2241 motion for Kinsey. See
Fernandez, 941 F.2d at 1495; 28 U.S.C. § 2241(d). If Kinsey is still incarcerated
in Atlanta, the appropriate venue for his motion would be the District Court for the
Northern District of Georgia. On remand, the district court may, in its discretion,
consider transferring the case to the appropriate venue, pursuant to 28 U.S.C.
§ 1631. See Dobard v. Johnson, 749 F.2d 1503, 1507 (11th Cir. 1985); 28 U.S.C.
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§ 2241(d).
Accordingly, we vacate the district court’s order of dismissal and remand
the case with instructions to proceed consistent with this opinion.
VACATED and REMANDED.
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