United States v. Morgan ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-7169
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LARRY SHANE MORGAN,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Abingdon. Glen M. Williams, Senior
District Judge. (1:99-cr-00076-gmw-1)
Submitted: November 21, 2008 Decided: December 12, 2008
Before TRAXLER, GREGORY, and SHEDD, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Larry Shane Morgan, Appellant Pro Se. Eric Matthew Hurt,
Assistant United States Attorney, Newport News, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Larry Shane Morgan appeals the district court’s order
denying his motion for clarification of the judgment and
commitment order entered against him in the Western District of
Virginia following his conviction for possession of explosives
and stolen firearms and for maintaining a place to manufacture
marijuana. In April 2000, the district court sentenced Morgan
to a total of 151 months’ imprisonment to be served concurrently
with a state sentence. Morgan filed a motion for clarification
in May 2008, in the federal district court in the Western
District of Virginia, claiming that the Bureau of Prisons
improperly failed to credit him with a portion of the time he
served on his state sentence while awaiting sentencing on the
federal charges. The district court denied Morgan’s motion for
clarification, finding that Morgan failed to exhaust
administrative remedies with the Bureau of Prisons.
Our review of the record leads us to conclude that the
district court should have treated Morgan’s motion as a habeas
corpus petition under 28 U.S.C. § 2241 (2000), because he
attacked the execution of his sentence. A § 2241 petition,
however, must be brought in the district of incarceration. See
28 U.S.C. § 2241(a); In re: Jones, 226 F.3d 328, 332 (4th Cir.
2000). Morgan is incarcerated at the Federal Correctional
Institution in Butner, North Carolina, which lies in the Eastern
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District of North Carolina. See 28 U.S.C. § 113(a) (2000). The
district court in the Western District of Virginia therefore
does not have jurisdiction over this § 2241 proceeding.
Accordingly, we vacate the district court’s order and
remand for the court to determine whether transferring Morgan’s
§ 2241 petition to the proper federal district court would serve
the interests of justice, see 28 U.S.C. § 1631 (2000), or
whether the action should be dismissed without prejudice to
Morgan’s right to file his action in the appropriate district
court. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional
process.
VACATED AND REMANDED
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