Albert Leonard Rutherford, Plaintiff-appellant, v. Richard L. Thornburgh, United States Attorney General,offices Department of Justice, Defendant-appellee, 976 F.2d 727 (4th Cir. 1992)

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U.S. Court of Appeals for the Fourth Circuit - 976 F.2d 727 (4th Cir. 1992) Submitted: November 29, 1991Decided: September 22, 1992

Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. James C. Fox, Chief District Judge. (CA-91-487-CRT-F)

Albert Leonard Rutherford, Appellant Pro Se.

E.D.N.C.

Reversed and Remanded.

Before HALL and NIEMEYER, Circuit Judges, and BUTZNER, Senior Circuit Judge.

OPINION

PER CURIAM:


Albert L. Rutherford appeals from the district court's order summarily dismissing his civil rights complaint.

Rutherford's claims challenging the sufficiency of the grounds for his arrest by federal agents and the conditions of his confinement as a pre-trial detainee are properly construed as raised pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). Although these claims appear to be time barred due to Rutherford's failure to comply with the applicable two-year statute of limitations, see Blanck v. McKeen, 707 F.2d 817 (4th Cir.), cert. denied, 464 U.S. 916 (1983); Colo. Rev. Stat.s 13-80-102 (1987), Rutherford was not provided with an opportunity to explain his delay. Thus, we reverse the district court's dismissal of these claims and remand for further proceedings.

The rest of Rutherford's claims are directed at the validity of his conviction and are properly construed as 28 U.S.C.s 2255 claims. See Pressly v. Gregory, 831 F.2d 514 (4th Cir. 1987). Claims filed under § 2255 must be filed in the district where sentence was imposed not in the district where the petitioner is presently confined. Braden v. 30th Judicial Circuit Court, 410 U.S. 484 (1973). Therefore, with regard to Rutherford's § 2255 claims, we reverse the district court's dismissal and remand with instructions to dismiss the claims without prejudice.

In conclusion, we reverse the district court's dismissal of Rutherford's Bivens claims and remand for further proceedings, and we reverse the dismissal of his habeas claims with instructions to dismiss them without prejudice for submission in the proper jurisdiction.*  We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the Court and argument would not aid the decisional process.

REVERSED AND REMANDED

 *

We deny Rutherford's Motion for a Declaratory Judgment and his motion seeking release from prison pending the outcome of his appeal. We also deny his Motion for Summary Judgment