Steven Lewin, Petitioner-appellant, v. United States of America, Respondent-appellee, 52 F.3d 325 (6th Cir. 1995)

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U.S. Court of Appeals for the Sixth Circuit - 52 F.3d 325 (6th Cir. 1995) April 6, 1995

Before: BOGGS and BATCHELDER, Circuit Judges, and ALDRICH, District Judge.* 

ORDER

Steven Lewin, a pro se federal prisoner, appeals a district court judgment denying his motion to vacate sentence filed pursuant to 28 U.S.C. § 2255. The case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination, this panel unanimously agrees that oral argument is not needed. Fed. R. App. P. 34(a).

In January 1991, a jury convicted Lewin of wire fraud, mail fraud, interstate transportation of property obtained by fraud, conspiracy to defraud the United States, filing false income tax returns, and aiding and abetting. He was sentenced to 48 months of imprisonment. On appeal, a panel of this court affirmed his conviction and sentence. United States v. Weiner, Case Nos. 91-1551, etc., (6th Cir. March 11, 1993).

In his motion to vacate sentence, Lewin challenged the computation of his sentencing credits, arguing that he is entitled to credit for 24 months that he allegedly spent in custody between the date of his sentencing and the date he reported to the Federal Prison Camp to begin his sentence. The district court denied the motion as without merit, concluding that Lewin was not in custody during the period in question.

Upon review, we conclude that the district court lacked jurisdiction to review the merits of Lewin's claim under 28 U.S.C. § 2255. Claims challenging the execution of a sentence must be asserted in a habeas corpus petition filed under 28 U.S.C. § 2241 in the district court having jurisdiction over the petitioner's custodian. See United States v. Jalili, 925 F.2d 889, 893-94 (6th Cir. 1991). In this case, Lewin asserted his claim in a Sec. 2255 motion to vacate filed in the Eastern District of Michigan where he was convicted; however, he is presently incarcerated in the Federal Prison Camp in Ashland, Kentucky. Hence, the district court should have dismissed the petition for lack of jurisdiction.

Accordingly, we hereby vacate the judgment and remand the case to the district court to dismiss the case for lack of jurisdiction. Rule 9(b) (3), Rules of the Sixth Circuit.

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The Honorable Ann Aldrich, United States District Judge for the Northern District of Ohio, sitting by designation