DocketNumber： 93-1886
Filed Date： 2/17/1994
Status： Precedential
Modified Date： 9/21/2015
February 17, 1994 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 93-1886
FRANCIS A. CONNOR, II.,
Petitioner, Appellant,
v.
UNITED STATES OF AMERICA,
Respondent, Appellee.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Walter Jay Skinner, U.S. District Judge]
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Before
Torruella, Boudin and Stahl,
Circuit Judges.
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Francis A. Connor on brief pro se.
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Per Curiam. Petitioner Francis Connor appeals the
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district court's dismissal of his petition for relief
pursuant to 28 U.S.C. 2255. We affirm.
Connor raises two issues in his petition. First, he
alleges that the district court violated 18 U.S.C.
3561(a)(3) when it sentenced him to a term of probation at
the same time as it sentenced him to a term of imprisonment
for another offense. See 18 U.S.C. 3561(a)(3) (sentence of
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probation may not be imposed if defendant is sentenced at the
same time to a sentence of imprisonment for the same or a
different offense). However, section 3561(a)(3) applies only
to offenses committed after Nov. 1, 1987. See Pub. L. No.
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98-473, 235(a)(1), 98 Stat. 1976, 2031. Since the offense
for which Connor was sentenced occurred in 1984, there was no
error in imposing upon him both a sentence of imprisonment
and one of probation.
Connor also asserts that the Probation Department
intends, without authority, to impose upon his probation
conditions not imposed by the sentencing court.1 See United
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States v. Crocker, 435 F.2d 601, 603 (8th Cir. 1971) ("Fixing
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the terms and conditions of probation is a judicial act which
may not be delegated."). Even if we assume that conditions
not yet imposed upon petitioner are ripe for review,
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1. The conditions are that the period of probation be served
in Springfield, Massachusetts and that petitioner refrain
from working in the used car business.
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petitioner is not challenging the legality of the sentence
imposed by the court but the conditions of confinement
imposed by the Probation Department. The proper vehicle for
such a petition is 28 U.S.C. 2241 not 28 U.S.C. 2255.
See United States v. Di Russo, 535 F.2d 673 (1st Cir. 1976)
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(allegation that "conditions of . . . confinement differ from
what the judge had contemplated at the time of sentencing"
cognizable under 2241 not 2255). Motions pursuant to
2241, however, must be brought before a district court which
has jurisdiction over the prisoner or his custodian. United
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States v. Glantz, 884 F.2d 1483, 1489 (1st Cir. 1989), cert.
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denied, 493 U.S. 1086 (1990). Thus, even if the petition were
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treated as one pursuant to 2241, the district court for the
District of Massachusetts was without jurisdiction to
entertain it since petitioner was incarcerated in
Pennsylvania at the time the petition was brought. See id.
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Affirmed.
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