Unpublished Dispositionronnie Lee Alston, Petitioner-appellant, v. John Gluch, Respondent-appellee, 921 F.2d 276 (6th Cir. 1990)

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U.S. Court of Appeals for the Sixth Circuit - 921 F.2d 276 (6th Cir. 1990)

Dec. 4, 1990


Before WELLFORD and ALAN E. NORRIS, Circuit Judges, and BALLANTINE, Chief District Judge.* 

ORDER

Ronnie Lee Alston, a pro se federal prisoner, appeals the district court's order dismissing his petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2241. This case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination of the record and briefs, this panel unanimously agrees that oral argument is not needed. Fed. R. App. P. 34(a).

Alston filed a petition for a writ of habeas corpus alleging violations of various constitutional rights arising out of the circumstances of his confinement. Alston's petition did not challenge the legality of his sentence. The district court dismissed Alston's petition, holding that his claims were more properly brought pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). Alston has appealed from this post-judgment order. He has filed a motion requesting appointment of counsel.

Upon review, we determine that the district court properly dismissed the case. As Alston is not challenging the legality of his sentence, his action is not cognizable under 28 U.S.C. § 2241. See Luther v. Molina, 627 F.2d 71, 76 (7th Cir. 1980).

Accordingly, we deny counsel and affirm the judgment, as herein modified to be without prejudice, for the reasons stated in the district court's memorandum opinion and order filed on August 29, 1989. Rule 9(b) (5), Rules of the Sixth Circuit.

 *

The Honorable Thomas A. Ballantine, Chief U.S. District Judge for the Western District of Kentucky, sitting by designation