                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 09-7034


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

FRANK LATHAN HINTON,

                  Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Raymond A. Jackson, District
Judge. (2:94-cr-00106-RAJ-1; 2:94-cv-01224)


Submitted:    September 10, 2009            Decided:   October 2, 2009


Before WILKINSON and MOTZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed as modified by unpublished per curiam opinion.


Frank Lathan Hinton, Appellant Pro Se.    Dana James Boente,
Acting United  States  Attorney,  Alexandria,  Virginia, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

               Frank   Lathan     Hinton     appeals       a   district          court   order

construing his pleading as being filed under 28 U.S.C.A. § 2255

(West Supp. 2009) and dismissing the pleading without prejudice

because it was a second or successive § 2255 motion and this

court    had    not    authorized    the     filing.           We    have    reviewed       the

record and Hinton’s pleading and find that it should have been

construed as a petition for a writ of habeas corpus under 28

U.S.C.    § 2241        (2006)     because        Hinton       was     challenging          the

execution of his sentence, claiming his sentence was complete.

In re Vial, 115 F.3d 1192, 1194 n.5 (4th Cir. 1997) (“[A]ttacks

on the execution of a sentence are properly raised in a § 2241

petition.”).           However,    Hinton        should    have      filed       the     § 2241

petition in the district in which he is currently confined.                                  In

re Jones, 226 F.3d 328, 333 (4th Cir. 2000); see also Rumsfeld

v. Padilla, 542 U.S. 426, 447 (2004) (“Whenever a § 2241 habeas

petitioner       seeks    to     challenge       his   present        physical         custody

within    the     United       States,     he     should       name        his    warden    as

respondent       and      file     the     petition        in        the     district        of

confinement.”).          Thus, regardless of whether the pleading was a

§ 2255 motion or a § 2241 petition, the district court did not

have jurisdiction.             Hinton is currently confined in a federal

penitentiary in West Virginia and he filed his petition in the

Eastern District of Virginia.               United States v. Poole, 531 F.3d

                                             2
263,       273-74    (4th   Cir.   2008)   (nothing   in    the   habeas   corpus

statute that would allow the court that originally sentenced the

petitioner to have jurisdiction over the § 2241 petition).                   Even

if his pleading was properly construed as a § 2255 motion, the

district court did not have jurisdiction because this court did

not give authorization under 28 U.S.C. § 2244 (2006) and § 2255

to file a second or successive motion.

               Accordingly, because the district court did not have

jurisdiction over the petition because Hinton was challenging

the execution of his sentence, we deny the application for a

certificate of appealability as moot and affirm the district

court’s      order    as    modified. *    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.

                                                           AFFIRMED AS MODIFIED




       *
       We note Hinton currently has a 28 U.S.C. § 2241 (2006)
petition pending in the United States District Court for the
Northern District of West Virginia that was transferred from the
United States District Court for the Eastern District of
Virginia.   See Hinton v. Warden, United States Penitentiary –
Hazelton, No. 2:09-cv-00096-REM-JES (N.D. W. Va.).            The
disposition of this appeal shall have no bearing on that case.



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