                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           FEB 7 2001
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                   No. 99-2312
                                                (D.C. No. CIV-99-313-SC/LFG)
    TIMOTHY FOSTER,                                        (D. N.M.)

                Defendant-Appellant.


                            ORDER AND JUDGMENT           *




Before EBEL , KELLY , and LUCERO , Circuit Judges.



         Defendant Timothy Foster, a prisoner in federal custody, appeals pro se

the district court’s denial of his petition for habeas corpus. Although filed as

a 28 U.S.C. § 2255 petition, we construe the petition as properly filed pursuant to

28 U.S.C. § 2241 because Foster attacks the execution, rather than the validity,



*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
of his sentence. Following entry of that order, Mr. Foster filed this appeal

and later, in the district court, filed a motion for reconsideration pursuant to

Fed. R. Civ. P. 59(e).   1
                             The district court has notified us that it intends to grant

the motion on the basis that it has no jurisdiction over this action because

Mr. Foster is incarcerated in La Tuna FCI, Texas. Thus, if Mr. Foster had filed

a motion for remand, we would have granted it in light of the district court’s

action. See Garcia v. Regents of Univ. of Cal.       , 737 F.2d 889, 890 (10th Cir.

1984). Mr. Foster, however, has failed to file any such motion. Therefore,

we may not remand this case and will consider the appeal.

       In its reply brief, the government contends that we, and the district court,

lack jurisdiction over this action. We agree. Mr. Foster is challenging the time

credited to him while he was in custody pursuant to the issuance of a detainer.

The detainer was issued by the United States District Court for the District of

New Mexico. It was served on Mr. Foster’s custodian at the time, the San Juan

County Jail in Aztec, New Mexico. Mr. Foster filed this petition while he was

incarcerated at the Phoenix FCI in Arizona. He is now incarcerated in La Tuna

FCI, in Zinton, Texas. A petition filed pursuant to § 2241 must be filed in the




1
      As the motion was filed more than ten days after the entry of final
judgment, the district court properly considered it as being filed pursuant to
Fed. R. Civ. P. 60(b). See Hawkins v. Evans , 64 F.3d 543, 546 (10th Cir. 1995).

                                              -2-
district where the petitioner is incarcerated.         See Haugh v. Booker , 210 F.3d

1147, 1149 (10th Cir. 2000).

       “The fact that a prisoner is outside the territorial limits of a federal district

court does not deprive it of subject matter jurisdiction.        A district court has

subject matter jurisdiction over a habeas corpus petition alleging a violation of

federal law under federal question jurisdiction.”          Dunne v. Henman , 875 F.2d

244, 248-50 (9th Cir. 1989) (citations omitted). The issue is          “whether a district

court without personal jurisdiction over a person’s          custodian , outside its

territorial limits, would have the power to enforce its orders.”        2
                                                                            Id. (and cases

cited therein). “[T]he court issuing the writ must have personal jurisdiction over

the person who holds the petitioner in custody . . . because [t]he writ of habeas

corpus does not act upon the prisoner who seeks relief, but upon the person who

holds him in what is alleged to be unlawful custody.”            Vasquez v. Reno , 233 F.3d

688, 690 (1st Cir. 2000) (   citations and quotation omitted).

       In Braden v. 30th Judicial Circuit Court of Kentucky           , 410 U.S. 484 (1973),

the Court held that a state prisoner wishing to challenge a detainer may file



2
      Personal jurisdiction is a waivable defense.   See FDIC v. Oaklawn
Apartments , 959 F.2d 170, 174-75 (10th Cir. 1992). Any objection a party may
have to the court’s exercise of personal jurisdiction over it must be asserted in the
answer or in a pre-answer motion.     See id. The government was not served and
did not participate in this case until we ordered briefing on appeal. At that time,
the government asserted the defense. Therefore, no waiver occurred.

                                                 -3-
a habeas petition either in his current state of incarceration or in the state which

lodged the detainer against him.     Id. at 498-99. However, a different situation is

present here. Mr. Foster is

       challeng[ing] the manner in which the federal authorities are
       executing his federal sentence[] . . . . Federal district courts have no
       authority to monitor the execution of a prisoner’s sentence. That task
       is left to the Bureau of Prisons. The proper forum to challenge the
       execution of a sentence is the district where the prisoner is confined.

              [Mr. Foster] has challenged the execution of his sentence by
       the Attorney General of the United States. He does not challenge the
       imposition of the federal sentence[]. Under these circumstances, [he]
       must name the warden of the penitentiary where he is confined as
       respondent and file his action in the district court whose territorial
       limits include his place of confinement. Failure to file a
       section 2241 petition attacking the execution of his federal sentence
       in the district where he is confined, denies the district court in
       personam jurisdiction over the warden to carry out its orders.

Dunne , 875 F.2d at 249-50 .

       We reject Mr. Foster’s contention that the “boundaries of ‘custody’”

do not apply to federal prisoners (Reply Br. at 2) thereby implying that the

Attorney General, because he supervises the Federal Bureau of Prisons, should be

considered the custodian of every prisoner in federal custody, thus conferring

jurisdiction on every federal court over all federal habeas petitioners.   See

Vasquez , 233 F.3d at 691 (and cases cited therein)     . Further, while we construe

pro se pleadings liberally and will review the pleadings to see if jurisdiction can

be asserted under any theory, the fundamental requirements of the Federal Rules


                                             -4-
of Civil Procedure apply equally to pro se and counseled litigants.         See, e.g. ,

Ogden v. San Juan County , 32 F.3d 452, 455 (10th Cir. 1994).         3
                                                                          At the time he

filed his petition, Mr. Foster should have filed it in the district court in Arizona.

He may now file one where his custodian is currently physically located.

       The judgment of the United States District Court for the District of

New Mexico is VACATED and the case is REMANDED to the district court

with instructions to dismiss it without prejudice for lack of jurisdiction. We

grant Mr. Foster’s motion for leave to proceed      in forma pauperis on appeal. The

mandate shall issue forthwith.



                                                        Entered for the Court



                                                        Carlos F. Lucero
                                                        Circuit Judge




3
         Of course, parole or subsequent removal of a petitioner from the district
with jurisdiction at the time a habeas petition is filed does not divest the court of
its jurisdiction. See Barden v. Keohane , 921 F.2d 476, 477 n.1 (3rd Cir. 1990)
(jurisdiction over habeas petition is determined when petition is filed).

                                            -5-
