United States v. Nest

Opinion

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 96-20011

Summary Calendar

UNITED STATES OF AMERICA Plaintiff-Appellee,

versus JOHN NEST, a.k.a. Francisco Perez Defendant-Appellant.

Appeal from the United States District Court For the Southern District of Texas USDC No. CR-94-285-2

October 23, 1996

Before HIGGINBOTHAM, WIENER, and BENAVIDES, Circuit Judges.

PER CURIAM:*

John Nest, Texas prisoner # 66527-079, appeals the district

court’s order denying his “Motion for Order to Remission [sic] of

Fine.” This court finds that it can not construe Nest’s motion in

any way that allows review or relief.

This court will not review this as a post-judgment criminal

motion. Nest does not argue that his motion should be interpreted

this way. Furthermore, we will not interpret it as such because

* Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4. the motion itself does not seek a judgment of acquittal, Rule

29(c), request a new trial, Rule 33, challenge the indictment or

jurisdiction, Rule 34, or ask for correction of a clerical mistake,

Rule 36. Even if we were to interpret it as a post-judgment

criminal motion, Nest filed his motion more than ten days after the

district court entered judgment. FED. R. APP. P. 4(b). As Nest has

not argued for an extension of time due to excusable neglect in

filing, id., the motion is not timely.

This court can not review Nest’s motion as a § 2241 habeas

corpus petition. Nest is incarcerated in Fairtown, New Jersey.

However, Nest filed his motion in the Southern District of Texas.

A § 2241 motion must be brought in the district in which a prisoner

is incarcerated; if not, the court lacks jurisdiction. 28 U.S.C.

§ 2241; Bell v. United States, 48 F.3d 1042, 1043-44 (5th Cir.

1995).

We also can not consider Nest’s motion as a prisoner’s civil

rights claim under 42 U.S.C. § 1983. It is possible that Nest

might be able to articulate a valid § 1983 claim if he could state

facts showing that the prison was forcing him to do without certain

basic human necessities, so as to “threaten [his] health and safety

and deprive [him] of basic hygiene and medical treatment . . . .”

See Williams v. Edwards, 547 F.2d 1206, 1215 (5th Cir. 1977).

However, because Nest has never filed any pleading against the

2 prison warden or any other prison staff, no § 1983 claim is

currently before this court.

Finally, reviewing Nest’s motion as a motion to vacate, set

aside, or correct sentence pursuant to 28 U.S.C. § 2255, we are

unable to offer Nest relief. Nest’s motion does not challenge his

confinement, but only the amount of his fine. Such a motion is not

within the ambit of § 2255. United States v. Segler, 37 F.3d 1131,

1137 (5th Cir. 1994) (holding that Congress “meant to limit the

types of claims cognizable under § 2255 to claims relating to

unlawful custody”); United States v. Gaudet, 81 F.3d 585, 592 (5th

Cir. 1996). The district court thus correctly dismissed this

motion.

AFFIRMED.