786 F.2d 1166
Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
BENJAMIN SALLEE, Petitioner-appellant
v.
CALVIN EDWARDS, Respondent-Appellee.
85-1754
United States Court of Appeals, Sixth Circuit.
2/12/86
E.D.Mich.
AFFIRMED
ORDER
BEFORE: KEITH and MARTIN, Circuit Judges and SPIEGEL, District Judge.*
This matter is before the Court for consideration of petitioner's motion for bail with an addendum, and appeal from the district court's orders denying habeas corpus relief and reconsideration. In addition, petitioner filed a motion for an expedited decision on his bail request. The case has been referred to a panel of the Court pursuant to Sixth Circuit Rule 9(a). Upon expedited examination of the certified record and plaintiff's informal brief filed on appeal, the panel agrees unanimously that oral argument is not needed. Rule 34(a), Federal Rules of Appellate Procedure.
Petitioner, a federal prisoner, was convited of possession of a controlled substance under 21 U.S.C. Sec. 841 and is serving a twelve year term of imprisonment. He filed a petition for habeas corpus relief under 28 U.S.C. Sec. 2241 in the district court, alleging that the trial court deprived him of his constitutional right to counsel by offering him a public defender instead of granting his motion for leave to retain counsel. Petitioner had retained counsel but discharged him prior to trial. Hence, rather than accept public defender assistance, he elected to represent himself at trial. The district court dismissed the petition and thereafter, denied petitioner's motion for reconsideration. Petitioner filed a notice of appeal and moved this Court for bail pending appeal.
Upon consideration, this Court finds that petitioner's claim arises from the imposition of his sentence and not the execution of his sentence. Accordingly, petitioner's application for habeas relief should have been filed pursuant to 28 U.S.C. Sec. 2255 after seeking relief from the trial court by motion to vacate the sentence. See United States v. Hayman, 342 U.S. 205 (1952); Cohen v. United States, 593 F.2d 766 (6th Cir. 1979); Wright v. United States Bd. of Parole, 557 F.2d 74 (6th Cir. 1977).
It is therefore ORDERED that petitioner's motion for bail be and hereby is denied and the district court's judgment affirmed. Rule 9(d)(3), Rules of the Sixth Circuit.
The Honorable S. Arthur Spiegel, U.S. District Judge for the Southern District of Ohio, sitting by designation