Bingham v. Schultz

135 F. App'x 938

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 22, 2005
• Docket: No. 04-17069
• Status: Published

Opinion

MEMORANDUM

**

Federal prisoner Raymond Bingham appeals pro se the district court’s judgment dismissing his 28 U.S.C. § 2241 habeas petition for lack of jurisdiction. We have jurisdiction pursuant to 28 U.S.C. § 2253. We review de novo, Tripati v. Henman, 843 F.2d 1160, 1162 (9th Cir.1988), and we affirm.

The district court properly dismissed Bingham’s § 2241 petition because he has not demonstrated that a motion under 28 U.S.C. § 2255 is inadequate or ineffective to test the legality of his detention. See Moore v. Reno, 185 F.3d 1054, 1055 (9th Cir.1999) (per curiam) (rejecting contention that § 2255 is inadequate or ineffective merely because the prisoner’s § 2255 motion might be second or successive). Although Bingham couches his claims as a challenge to the execution of his sentence, he is actually challenging the validity of the sentence imposed by the district court. Accordingly, the district court properly dismissed Bingham’s § 2241 petition for lack of jurisdiction. See id.

Bingham’s motion for appointment of counsel is denied.

AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.