Unpublished Disposition, 914 F.2d 264 (9th Cir. 1990)

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U.S. Court of Appeals for the Ninth Circuit - 914 F.2d 264 (9th Cir. 1990)

UNITED STATES of America, Plaintiff-Appellee,v.Peter Wayne FROST, Defendant-Appellant.

No. 88-15121.

United States Court of Appeals, Ninth Circuit.

Submitted Sept. 18, 1990.* Decided Sept. 20, 1990.

Before GOODWIN, Chief Judge, HUG and BEEZER, Circuit Judges.


MEMORANDUM** 

Peter Wayne Frost, formerly a federal prisoner, appeals pro se the district court's dismissal of his 28 U.S.C. § 2255 motion to vacate, set aside, or correct his federal sentence. Frost contends that the district court erred in (1) dismissing his claim regarding the execution of his sentence for improper jurisdiction; (2) determining that he had a reasonable opportunity to review his presentence report; and (3) determining that he was not denied due process when the maximum sentence was imposed for his crime. We affirm in part and dismiss in part.

This court reviews the denial of a 28 U.S.C. § 2255 motion de novo. United States v. Quan, 789 F.2d 711, 713 (9th Cir.), cert. dismissed, 478 U.S. 1033 (1986).

On May 29, 1982, Frost was sentenced to five years imprisonment following entry of a plea of guilty to a violation of 18 U.S.C. § 1542, False Statement in Application and Use of a Passport. The United States Parole Commission gave Frost a presumptive parole date of December 14, 1983, which required Frost to serve 20 months in prison.

At some point, Frost escaped from custody during a furlough transfer. On August 29, 1985, Frost pleaded guilty to escape in violation of 18 U.S.C. §§ 751(a) and 4082, and was sentenced to two years in prison, to run consecutive to the sentence he was serving at the time of his escape. On July 23, 1986, the Parole Commission rescinded Frost's presumptive parole date and ordered that he be continued in custody until the expiration of his sentence.

On July 13, 1987, Frost filed this section 2255 motion in the district court for the Northern District of California. The district court denied the motion on July 5, 1988. Frost timely appeals.1 

* Jurisdiction and Venue

Frost contends that the district court erred in dismissing his claim that the Parole Commission is executing his sentence improperly because it lacked authority to decide that issue. The district court correctly determined it did not have jurisdiction to address this issue.

A federal prisoner may attack the execution of his sentence only by way of a habeas corpus petition filed pursuant to 28 U.S.C. § 2241. Brown v. United States, 610 F.2d 672, 677 (9th Cir. 1980). The proper forum to challenge the execution of a sentence is the district where the prisoner is confined. Dunne v. Henman, 875 F.2d 244, 249 (9th Cir. 1989).

In his section 2255 motion, Frost alleged that the Parole Commission erred in imposing a presumptive release date of 20 months because the district court indicated that he would only serve 14-16 months of his five-year sentence. Frost's allegations therefore relate to the manner of execution of his sentence. His challenge to the action of the Parole Commission is cognizable only in a section 2241 habeas corpus petition. See Brown, 610 F.2d at 677. He was therefore required to bring this claim in the district of Arizona, where he was incarcerated at the time he filed the petition. See Dunne, 875 F.2d at 249. The district court did not err in determining that it lacked jurisdiction over this claim.

II

Presentence Report and Due Process

Frost next contends that he had an inadequate amount of time, only 45 minutes, to examine his presentence report prior to sentencing. He also contends that the district court deprived him of due process when it imposed the maximum sentence based on erroneous assumptions. We dismiss these claims on the ground that they are moot.

Federal courts lack jurisdiction to decide a case if it is moot. Sample v. Johnson, 771 F.2d 1335, 1338 (9th Cir. 1985), cert. denied, 475 U.S. 1019 (1986). A case is moot when "the issues are no longer live or the parties lack a legally cognizable interest in the outcome" and when "a court's decision will no longer have an impact on [the petitioner]." Id. at 1338-39.

In his request for oral argument dated August 1, 1990, Frost advised this court that he was being "released from Bureau of Prisons custody in seven days...." The relief Frost sought in his habeas corpus petition was, in effect, to have his sentence or the time he had to serve in prison shortened. Because Frost attacks only his federal sentence, rather than the validity of the underlying federal conviction, the completion of his sentence moots this action. Lane v. Williams, 455 U.S. 624, 631-33 (1982); North Carolina v. Rice, 404 U.S. 244, 248 (1971); Aaron v. Pepperas, 790 F.2d 1360, 1362 (9th Cir. 1986). Any adjudication by this court as to Frost's claims would have no impact on petitioner and therefore, his petition is moot.

AFFIRMED in part; DISMISSED in part.

 *

The panel unanimously finds this case suitable for disposition without oral argument. Fed. R. App. P. 34(a); 9th Cir.R. 34-4. Accordingly, Frost's request for oral argument is denied

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Circuit R. 36-3

 1

The government contends that Frost's appeal is untimely pursuant to Fed. R. App. P. 4(b). Rule 4(b), however, only applies to appeals in criminal cases. The time for appeal from an order entered on a section 2255 motion is 60 days. Rule 11, Rules Governing Section 2255 Proceedings; Fed. R. App. P. 4(a); United States v. Hayman, 342 U.S. 205, 209 n. 4 (1952); United States v. Layton, 855 F.2d 1388, 1415 (9th Cir. 1988), cert. denied, 109 S. Ct. 1178 (1989). Frost's notice of appeal was filed on August 10, 1988, less than 60 days from entry of the district court's judgment and therefore, his appeal is timely

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