United States v. Adams ( 2002 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-10525
c/w No. 02-10603
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WAYNE DYANE ADAMS,
Defendant-Appellant.
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Appeals from the United States District Court
for the Northern District of Texas
USDC Nos. 6:99-CR-18-ALL-C
6:99-CR-18-1-C
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September 27, 2002
Before JONES, STEWART, and DENNIS, Circuit Judges.
PER CURIAM:*
Wayne Dyane Adams, prisoner number 34109-077, who was
convicted of making a false statement in connection with the
acquisition of a firearm, appeals the district court’s denial of
his “motion for judgment nunc pro tunc” and moves this court for
authorization to proceed in forma pauperis (IFP) on appeal. To
proceed IFP, Adams must demonstrate both financial eligibility and
*
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that this opinion should not be published and is not precedent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.
Nos. 02-10525 c/w 02-10603
-2-
a nonfrivolous issue for appeal. Carson v. Polley, 689 F.2d 562,
586 (5th Cir. 1982).
Because Adams’ motion challenged the manner in which his
sentence is being executed, it is best construed as a 28 U.S.C.
§ 2241 habeas corpus petition. See Tijerina v. Thornburgh, 884
F.2d 861, 863 (5th Cir. 1989); United States v. Santora, 711 F.2d
41, 42 n.1 (5th Cir. 1983). The district court lacked jurisdiction
to consider Adams’ petition because he is incarcerated in the
Eastern District of Texas. See United States v. Gabor, 905 F.2d
76, 78 (5th Cir. 1990); see also 28 U.S.C. § 124(c)(2). Because
the district court lacked jurisdiction over Adams’ 28 U.S.C. § 2241
petition, Adams’ appeal is without arguable merit and is thus
frivolous. Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983).
Because this appeal is frivolous, it is DISMISSED, and Adams’
motion to proceed IFP on appeal is DENIED. See 5th Cir. R. 42.2.