818 F2d 30 United States v. Farmer

818 F.2d 30
Unpublished Disposition

UNITED STATES of America, Plaintiff-Appellee,
v.
John Lee FARMER, Defendant-Appellant.

No. 86-7727.

United States Court of Appeals, Fourth Circuit.

Submitted Feb. 25, 1987.
Decided April 29, 1987.

NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.

Before HALL, PHILLIPS, and ERVIN, Circuit Judges.

John Lee Farmer, Appellant Pro Se.

Joseph John Aronica, Office of the United States Attorney, for appellee.

PER CURIAM:


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1

John Lee Farmer, a federal inmate, appeals from the district court's denial of his motion for post-conviction relief pursuant to 28 U.S.C. Sec. 2255. In his motion Williams claims that under 18 U.S.C. Sec. 3568 he is entitled to credit against his sentence for time he previously served in a state prison under a state sentence. We do not reach the merits of Farmer's claims, because the court below was without jurisdiction to consider his motion.

2

A claim for credit against a sentence under 18 U.S.C. Sec. 3568 cannot be brought under 28 U.S.C. Sec. 2255. Such a claim attacks the computation and exedcution of the sentence rather than the sentence itself. Review may be had through a petition for habeas corpus pursuant to 28 U.S.C. Sec. 2241. United States v. Brown, 753 F.2d 455 (5th Cir.1985). See also United States v. Giddings, 740 F.2d 770 (9th Cir.1984)); Soyka v. Alldridge, 481 F.2d 303 (3d Cir.1973).

3

A writ of habeas corpus under 28 U.S.C. Sec. 2241 may be issued only by a court having jurisdiction over the person who holds the petitioner in custody. Braden v. 30th Judicial Circuit Court, 410 U.S. 484, 494-95 (1973). Farmer's custodian is the warden of his prison in Duluth, Minnesota. Billiteri v. United States Board of Parole, 541 F.2d 938, 948 (2d Cir. 1976). The district court, therefore, did not have jurisdiction to rule on Farmer's claim.

4

Accordingly, because the dispositive issues recently have been decided authoritatively, we dispense with oral argument, vacate the judgment of the district court and remand withinstructions to dismiss the motion without prejudice to allow Farmer to refile it, if he wishes, in the proper judiciail district.

5

VACATED AND REMANDED.