Unpublished Disposition, 884 F.2d 1394 (9th Cir. 1989)

MEMORANDUM^** 

In 1975, Travis W. Allen was convicted of violating 21 U.S.C. § 841(a) (1) and sentenced to five years imprisonment followed by a mandatory three-year special parole term. Allen is currently incarcerated in California for violating the terms of his special parole.¹  In this action, Allen seeks to challenge the validity of the special parole term. Allen contends that the Comprehensive Crime Control Act of 1984, Pub. L. No. 98-473, Sec. 224(a) (1), 98 Stat. 1976, 2030 (1984), eliminated the statute authorizing special parole, and thereby retroactively invalidated his parole term, requiring Allen's immediate release from his current confinement. The district court for the Central District of California denied Allen's petition on the merits, holding that " [a] sentence legal when imposed remains legal even though the penalty is subsequently modified by the legislature. See 1 U.S.C. 109; Bradley v. United States, 410 U.S. 605 (1973)." Allen timely appeals the decision of the district court.

The petition Allen filed with the Central District of California was treated as a petition for writ of habeas corpus brought pursuant to 28 U.S.C. § 2241. However, because Allen is attacking the legality of the sentence imposed in 1975 his petition actually falls under 28 U.S.C. § 2255. Section 2255 permits

[a] prisoner in custody ... to [move the court which imposed the sentence to vacate, set aside or correct the sentence] 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.

28 U.S.C. § 2255. Section 2241, on the other hand, permits only challenges to conditions of confinement or to "the sentence 'as it is being executed'," rather than the actual sentence imposed. Brown v. United States, 610 F.2d 672, 677 (9th Cir. 1980) (quoting Ridenour v. United States, 446 F.2d 57 (9th Cir. 1971)). Section 2255 has been used to challenge the legality of a special parole term due to the alleged invalidation of the penalty by subsequent statutory repeal or amendment. Cf. United States v. Garcia, No. 87-6089, slip op. at 6049 (9th Cir. June 7, 1989); United States v. Figueroa, 686 F. Supp. 459 & n. 1 (S.D.N.Y. 1988).

An attack on a sentence pursuant to Section 2255 must ordinarily be brought in the original sentencing court rather than in the court in the district where the prisoner is confined. 28 U.S.C. § 2255; Gano v. United States, 705 F.2d 1136, 1137 (9th Cir. 1983). Allen's 1975 sentence was imposed in the Northern District of Illinois. There is no evidence that " 'the remedy by motion [to the sentencing court] is inadequate or ineffective to test the legality of [Allen's] ... detention.' " Tripati v. Henman, 843 F.2d 1160, 1162 (9th Cir.) (quoting 28 U.S.C. § 2255), cert. denied, 109 S. Ct. 851 (1988). Therefore, the district court for the Central District of California was without jurisdiction to consider the merits of Allen's appeal.

This case is REMANDED with instructions to dismiss for lack of jurisdiction. See Brown, 610 F.2d at 677.