Orlando Rene Monie, Petitioner-appellant, v. J.m. Fitzpatrick, Respondent-appellee, 141 F.3d 1177 (9th Cir. 1998)

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US Court of Appeals for the Ninth Circuit - 141 F.3d 1177 (9th Cir. 1998) Submitted March 10, 1998**.Decided March 13, 1998

Appeal from the United States District Court for the Central District of California, Kim McLane Wardlaw, District Judge, Presiding.

Before FLETCHER, BEEZER, and LEAVY, Circuit Judges.


Orlando Rene Monie, a federal prisoner, appeals pro se the district court's denial without prejudice of his 28 U.S.C. § 2241 petition challenging his conviction in the Southern District of Iowa for possession with intent to distribute eighty-six kilograms of cocaine. The district court dismissed for lack of jurisdiction. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

Monie contends that the district court had jurisdiction under 28 U.S.C. § 2241 because he is incarcerated illegally in the Central District of California and because the Eighth Circuit refused to allow him to file a successive section 2255 motion. This contention lacks merit.

We review a district court's dismissal of a section 2241 petition de novo. See United States v. Pirro, 104 F.3d 297, 299 (9th Cir. 1996).

Monie is attacking the legality of his conviction, not the execution of his sentence. Accordingly, this section 2241 petition is construed as a section 2255 motion. See Tripati v. Herman, 843 F.2d 1160, 1162-63 (9th Cir. 1988). Because a section 2255 motion may only be brought in the sentencing court, the Central District court correctly dismissed for lack of jurisdiction. See id. at 1160.



The panel unanimously finds this case suitable for decision without oral argument. See 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