                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 08-1330
                                    ___________

Donald Ray Nichols,                      *
                                         *
             Appellant,                  *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * District of Minnesota.
Jessica Symmes, Acting                   *
Warden, Oak Park Heights,                *
                                         *
             Appellee.                   *
                                    ___________

                              Submitted: November 11, 2008
                                 Filed: January 21, 2009
                                  ___________

Before WOLLMAN, BEAM, and BENTON, Circuit Judges.
                          ___________

BEAM, Circuit Judge.

      Donald Ray Nichols appeals the district court's1 denial of his petition for habeas
corpus. We affirm.




      1
       The Honorable Donovan W. Frank, United States District Judge for the District
of Minnesota, adopting the Report and Recommendation of the Honorable Raymond
L. Erickson, Chief United States Magistrate Judge for the District of Minnesota.
I.    BACKGROUND

       In 1995, Nichols pleaded guilty to aiding and abetting the murder of an inmate
at a federal penitentiary in Colorado. The terms of his plea agreement provided that
the government would recommend that Nichols serve his entire sentence in a state
prison facility, rather than a federal facility, unless he was moved to the federal
facility for disciplinary reasons. In October 1995, he was sentenced to 420 months'
imprisonment, and began serving his sentence in state prison in Colorado. In
February 1998, shortly before he was to testify at his co-defendant's federal trial, he
was transferred to a federal prison facility in Colorado. After his co-defendant was
acquitted in March 1998, Nichols was transferred to the federal penitentiary in
Florence, Colorado, instead of being returned to the state facility where he began
serving his sentence in 1995.

       In April 2000, Nichols unsuccessfully asked the Colorado federal district court
for leave to withdraw his guilty plea, arguing that the government had materially
breached the agreement by housing him at the federal penitentiary. In November
2000, Nichols brought a 28 U.S.C. § 2241 petition for habeas corpus in Colorado
federal court. Nichols asserted that the government breached the plea agreement by
failing to timely bring a Rule 35 motion, that his plea was not knowing and voluntary,
and that he had received ineffective assistance of counsel. The Colorado district court
converted the motion into a § 2255 petition to vacate or correct the sentence and
denied it as untimely with regard to the second and third issues, because the statute of
limitations on those claims expired on April 23, 1997. The district court denied the
breach of plea agreement claim on the merits. The Tenth Circuit affirmed in an
unpublished decision. United States v. Nichols, 18 F. App'x 770 (10th Cir. 2001).

     Although the record is not entirely clear on the issue, at some point, presumably
between 2003 and 2006, Nichols was transferred to a state prison facility in
Minnesota. In October 2006, Nichols filed the current action, again styling it as a 28

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U.S.C. § 2241 petition for habeas corpus attacking the execution of his sentence.
However, rather than actually attacking the execution of his sentence, Nichols again
seeks to withdraw his guilty plea as a result of the government's alleged breach of the
plea agreement by placing him, for a period of time, in the federal prison in Colorado.
The district court construed his petition as one for § 2255 relief because Nichols
sought to withdraw his guilty plea, which necessarily implicated the validity of his
underlying conviction. Accordingly, the district court denied relief, because only the
sentencing court has jurisdiction over a § 2255 petition.

II.   DISCUSSION

       We review the district court's decision de novo. White v. United States, 308
F.3d 927, 929 (8th Cir. 2002). A claim attacking the validity of a guilty plea, and
therefore the underlying sentence, is properly entertained in a § 2255 petition before
the sentencing court. Hill v. Morrison, 349 F.3d 1089, 1091 (8th Cir. 2003). On the
other hand, a claim attacking the execution of that sentence should be brought in a §
2241 petition in the jurisdiction of incarceration. Id.

       Nichols' primary problem is the relief he is seeking. If he were simply claiming
that the government has wrongly housed him in a federal, as opposed to state, facility,
and he wanted to remedy that wrong by being returned to the state facility, the correct
procedure would have been to bring a § 2241 petition. Peak v. Petrovsky, 734 F.2d
402, 405 n.6 (8th Cir. 1984). Indeed, Nichols cites Peak in support of his claims. In
Peak, the prisoner brought a § 2241 petition, claiming that actions by the government
violated the plea agreement and, as a result, he lost credit toward early parole. We
noted that if the government makes a promise which induces a guilty plea, the
government must fulfill that promise, and that a § 2241 petition is the proper vehicle
for remedying the breach. Id. at 405 & n.6. However, we held that the government
did not actually breach the plea agreement in that case. Id. at 405.



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       We fail to see how Peak helps Nichols' cause. The prisoner in Peak was not
seeking to withdraw his guilty plea. He was seeking specific performance–that the
government keep its promise and not consider dismissed counts for sentencing. Here,
Nichols does not seek specific performance, probably because he has already been
moved to a state facility. See United States v. Van Thournout, 100 F.3d 590, 594 (8th
Cir. 1996) (noting that specific performance is the preferred remedy for the
government's breach of the plea agreement). Thus, if Nichols wants the court to
consider his petition as a § 2241 execution of sentence claim, then the case is moot
because the alleged defect in the execution of the sentence–confinement in a federal
facility–has already been cured. See Miller v. Whitehead, 527 F.3d 752, 756 (8th Cir.
2008) (dismissing § 2241 appeal as moot because inmates had received the requested
relief of placement in a residential re-entry center).

       However, we believe the district court correctly parsed the language of Nichols'
petition and construed the claim as one attacking the validity of his guilty plea and
resulting sentence, making it a § 2255 petition. Because Nichols cannot meet the
stringent requirements needed to file a successive § 2255 petition, see 28 U.S.C. §
2255(h), the district court properly refused to transfer the petition to the sentencing
court's jurisdiction.

       We reject Nichols' argument that he was precluded from bringing a timely §
2255 petition because of the lateness of the government's breach. Nichols points out
that he was not moved to the federal facility until 1998, and the one-year statute of
limitations for his claim expired on April 23, 1997. Nichols could have made this
argument to the Colorado federal district court in his initial § 2255 filing. However,
Nichols' Claim 1 in that motion asserted only that the government breached the plea
agreement by failing to timely file a Rule 35 motion. Appellant's Appendix at 101.
The district court rejected that claim on the merits rather than basing its denial on the
statute of limitations. Id. at 114. Nichols did raise the incarceration issue in his
motion to withdraw his guilty plea, id. at 85-91, and the sentencing court considered

                                          -4-
and rejected that issue on the merits as well, id. at 94. "A prisoner cannot raise, in a
§ 2241 motion filed in the district of incarceration, an issue which could or was
actually raised in the § 2255 motion filed in the sentencing district." Hill, 349 F.3d
at 1092. This issue arguably falls into both of those categories–it either actually was
raised in the prior proceeding or it could have been. Accordingly, we are prohibited
from considering Nichols' claims. Id.

III.   CONCLUSION

       We affirm the judgment of the district court.
                       ______________________________




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