Billy Dalton Frost, Petitioner-appellant, v. Art Beeler, Warden, Respondent-appellee, 92 F.3d 1185 (6th Cir. 1996)

Before: RYAN and SUHRHEINRICH, Circuit Judges; ENSLEN, District Judge.^* 

ORDER

Billy Dalton Frost appeals a district court judgment dismissing his petition for a writ of habeas corpus filed under 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, this panel unanimously agrees that oral argument is not needed. Fed. R. App. P. 34(a).

Following a guilty plea in the United States District Court for the Western District of North Carolina in 1993, Frost was convicted of conspiracy to possess with intent to distribute cocaine and using or carrying a firearm during and in relation to a drug trafficking offense. Petitioner moved to withdraw his guilty plea prior to sentencing, and the court denied the motion. The denial of petitioner's motion to withdraw his guilty plea was affirmed on appeal. United States v. Frost, No. 94-5003, 1994 WL 706121 (4th Cir. Dec. 20, 1994) (per curiam). Thereafter, petitioner was sentenced to 15 years of imprisonment.

Petitioner filed his petition in the district court alleging that the indictment which resulted in his conviction was based upon perjured testimony. The magistrate judge recommended that the petition be dismissed without prejudice to petitioner's right to pursue relief in the sentencing court by motion to vacate sentence under 28 U.S.C. § 2255, and petitioner filed objections. The district court adopted the magistrate judge's recommendation and dismissed the petition. This timely appeal followed.

On appeal, petitioner contends that the district court erred in dismissing his petition. The government responds that the district court lacked subject matter jurisdiction over the petition. Upon consideration, the judgment is affirmed for the reasons stated in the magistrate judge's report and recommendation filed August 22, 1995, and adopted by the district court in its opinion and order filed September 28, 1995. Petitioner's claim simply is not cognizable under § 2241, but must be brought in the sentencing court by motion to vacate sentence filed under 28 U.S.C. § 2255. See Cohen v. United States, 593 F.2d 766, 770 (6th Cir. 1979); Wright v. United States Bd. of Parole, 557 F.2d 74, 76-77 (6th Cir. 1977).

Accordingly, the judgment of the district court is affirmed. Rule 9(b) (3), Rules of the Sixth Circuit.