United States of America, Plaintiff-appellee, v. Robert Franklin Shilt, Defendant-appellant, 56 F.3d 75 (9th Cir. 1995)

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US Court of Appeals for the Ninth Circuit - 56 F.3d 75 (9th Cir. 1995) Submitted May 16, 1995. *Decided May 18, 1995

Before: WALLACE, Chief Judge, HUG and NOONAN, Circuit Judges.


Robert Franklin Shilt, a federal prisoner, appeals pro se the district court's order striking his motion to correct an illegal sentence pursuant to Fed. R. Crim. P. 35(a) or in the alternative to withdraw his guilty plea pursuant to Fed. R. Crim. P. 32(d). We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

The district court correctly held that it lacked jurisdiction to grant Shilt the requested relief. See United States v. Johnson, 988 F.2d 941, 943 (9th Cir. 1993) (Rule 35(a)); United States v. Baker, 790 F.2d 1437, 1438 (9th Cir. 1986) (Rule 32(d)). As a general rule, a pro se inmate's motion to correct an illegal sentence improperly brought under Rule 35(a) should be liberally construed as a 28 U.S.C. § 2255 petition. See Johnson, 988 F.2d at 943. The district court did not err by declining to treat Shilt's motion as a Sec. 2255 petition because Shilt stated in his motion that he did not seek relief under Sec. 2255.



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