
USCA1 Opinion

	




          February 17, 1994     [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ___________________          No. 93-1886                                           FRANCIS A. CONNOR, II.,                                Petitioner, Appellant,                                          v.                              UNITED STATES OF AMERICA,                                Respondent, Appellee.                                  __________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                    [Hon. Walter Jay Skinner, U.S. District Judge]                                              ___________________                                 ___________________                                        Before                             Torruella, Boudin and Stahl,                                   Circuit Judges.                                   ______________                                 ___________________               Francis A. Connor on brief pro se.               _________________                                  __________________                                  __________________                 Per  Curiam.    Petitioner Francis  Connor  appeals  the                 ___________            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                                  ___            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.                                                         ___            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                                                               ___ ______            States v. Crocker, 435 F.2d 601, 603 (8th Cir. 1971) ("Fixing            ______    _______            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,                                            ____________________            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.                                         -2-            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)            ___ _____________     ________            (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                                                                   ______            States v. Glantz, 884 F.2d  1483, 1489 (1st Cir. 1989), cert.            ______    ______                                        ____            denied, 493 U.S. 1086 (1990). Thus, even if the petition were            ______            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.                                                                 ___ __                 Affirmed.                 ________                                         -3-
