United States v. Ray

• Court: Court of Appeals for the Fifth Circuit
• Decided: June 22, 1999
• Docket: 98-41036
• Status: Unpublished

Opinion

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _____________________

No. 98-41036 Summary Calendar _____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

versus

JOHN WILLIAM RAY, SR.,

Defendant-Appellee. _________________________________________________________________

Appeal from the United States District Court for the Southern District of Texas (B-96-CV-115, B-85-CR-346-2) _________________________________________________________________

June 18, 1999

Before POLITZ, BARKSDALE, and STEWART, Circuit Judges.

PER CURIAM:*

John William Ray, former federal prisoner # 29041-079,

obtained relief from his original sentencing court under 28 U.S.C.

§ 2255, contending that, after revocation of his special parole,

the United States Parole Commission acted outside its authority in

imposing a term of regular parole. The Government appeals

following the district court’s denial of its FED. R. CIV. P. 60(b)

motion for reconsideration.

We first consider sua sponte a defect in subject matter

jurisdiction. E.g., Giles v. NYLCare Health Plans, Inc., 172 F.3d

* Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

- 1 - 332, 336 (5th Cir. 1999). Because Ray’s motion attacks the manner

of execution of his sentence, rather than his sentence itself, it

is not cognizable in a § 2255 motion. See 28 U.S.C. § 2255 (motion

directed to “the court which imposed the sentence”); Blau v. United

States, 566 F.2d 526, 527-28 (5th Cir. 1978) (“[A] petition for

habeas corpus pursuant to 28 U.S.C. § 2241, rather than a § 2255

motion, is the proper vehicle to review a decision by the Parole

Commission”).

“To entertain a § 2241 habeas petition, the district court

must, upon the filing of the petition, have jurisdiction over the

prisoner or his custodian.” United States v. Gabor, 905 F.2d 76,

78 (5th Cir. 1990). At the time of his petition, Ray was confined

at the Federal Correctional Facility at Big Springs, in the Northen

District of Texas; accordingly, the district court for the Southern

District of Texas, in which he filed his petition, lacked

jurisdiction.

The judgment of the district court granting relief is VACATED,

and the case REMANDED to the district court with instructions to

dismiss for lack of jurisdiction.

VACATED AND REMANDED

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