United States v. Romero-Soto

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

__________________

No. 96-40083 Conference Calendar __________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

RODOLFO ROMERO-SOTO,

Defendant-Appellant.

- - - - - - - - - - Appeal from the United States District Court for the Southern District of Texas USDC No. L-95-CV-126 - - - - - - - - - - April 18, 1996 Before DUHÉ, DeMOSS, and DENNIS, Circuit Judges.

PER CURIAM:*

Rodolfo Romero-Soto appeals from the district court's

dismissal of his 28 U.S.C. § 2255 motion which the district court

construed as a 28 U.S.C. § 2241 petition. Romero-Soto's

appellate brief is construed as a motion to proceed in forma

pauperis (IFP) on appeal. Because Romero-Soto was challenging

the execution of his sentence, his motion was properly construed

as a 28 U.S.C. § 2241 petition. See United States v. Gabor, 905

F.2d 76, 77 (5th Cir. 1990).

* Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4. No. 96-40083 -2-

Romero-Soto is confined in Big Spring, Texas, which is

located in Howard County, Texas. Thus, jurisdiction is proper in

the Northern District of Texas. See 28 U.S.C. § 124(a)(3). The

Southern District of Texas lacked jurisdiction to afford Romero-

Soto the relief he requested. Gabor, 905 F.2d at 78. Because

the appeal raises no legal issue of arguable merit, it is

frivolous. See Jackson v. Dallas Police Dep't, 811 F.2d 260, 261

(5th Cir. 1986). Therefore, Romero-Soto's motion to proceed IFP

on appeal is DENIED and the appeal is DISMISSED. See 5th Cir. R.

42.2.