Martin Barraz-meza, Petitioner-appellant, v. J.l. Sivley, Respondent-appellee, 24 F.3d 244 (9th Cir. 1994)

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US Court of Appeals for the Ninth Circuit - 24 F.3d 244 (9th Cir. 1994) Submitted April 5, 1994. *Decided April 14, 1994

Before: POOLE, BEEZER, and T.G. NELSON, Circuit Judges.


MEMORANDUM** 

Martin Barraz-Meza, a federal prisoner, appeals pro se the district court's dismissal of his 28 U.S.C. § 2241 habeas petition for lack of jurisdiction. We review de novo, Tripati v. Henman, 843 F.2d 1160, 1162 (9th Cir.), cert. denied, 488 U.S. 982 (1988) and affirm.

Generally, a federal prisoner must file a motion pursuant to 28 U.S.C. § 2255 if he is challenging his conviction or sentence. Id. A prisoner may not file a Sec. 2241 habeas petition unless the Sec. 2255 motion would be inadequate or ineffective to test the legality of his detention. Id.; 28 U.S.C. § 2255. Only the sentencing court has jurisdiction over motions filed pursuant to 28 U.S.C. § 2255. Tripati, 843 F.2d at 1163.

Here, Barraz-Meza contends that the district court erred in dismissing his petition for lack of jurisdiction because he is not challenging his conviction. This contention lacks merit.

Barraz-Meza argues that the government lacked jurisdiction to prosecute him, the government failed to charge him with a crime, and his sentence exceeds the maximum penalty. All of these claims involve challenges to Barraz-Meza's conviction or sentence. Since challenges to a conviction or sentence must be filed pursuant to Sec. 2255, the district court did not err in dismissing Barraz-Meza's habeas petition. See Tripati, 843 F.2d at 1162. In addition, Barraz-Meza has not shown that his remedy under Sec. 2255 is inadequate or ineffective. See id.

Moreover, the district court could not construe Barraz-Meza's Sec. 2241 petition as a Sec. 2255 motion, because only the sentencing court has jurisdiction over a Sec. 2255 motion. See 28 U.S.C. § 2255; Tripati, 843 F.2d at 1163. Since the district court for the Southern District of California sentenced Barraz-Meza, he must seek relief from that district. See Tripati, 843 F.2d at 1163. Accordingly, the Arizona district court properly dismissed Barraz-Meza's habeas petition for lack of jurisdiction. See id.

AFFIRMED.

 *

The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a); 9th Cir.R. 34-4

 **

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 Cir.R. 36-3

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