                                                                         FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                   July 24, 2009
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                    Clerk of Court
                                TENTH CIRCUIT



 ROBERT JOSEPH ZANI,

               Petitioner-Appellant,                     No. 09-1110
          v.                                             (D. of Colo.)
 UNITED STATES MARSHALS                        (D.C. No. 09-cv-52-ZLW-BNB)
 SERVICE, DENVER, and THE
 TEXAS BOARD OF CRIMINAL
 JUSTICE, HUNTSVILLE,

               Respondents-Appellees.


                           ORDER AND JUDGMENT *


Before TACHA, TYMKOVICH, and GORSUCH, Circuit Judges. **


      Robert Joseph Zani appeals from the district court’s dismissal of his

application for habeas relief pursuant to 28 U.S.C. § 2241. Because we conclude

the district court lacked jurisdiction, we VACATE the district court’s prior order

and REMAND the case with instructions to dismiss without prejudice, unless the


      *
         This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
district court finds a transfer pursuant to 28 U.S.C. § 1631 in the interests of

justice.

           Zani, a prisoner currently incarcerated in Tennessee Colony, Texas, filed a

pro se application for writ of habeas corpus pursuant to 28 U.S.C. § 2241 in the

United States District Court for the District of Colorado. 1 He also filed a motion

for leave to proceed in forma pauperis, pursuant to the Prison Litigation Reform

Act, 28 U.S.C. § 1915. In his petition, Zani contends he is being held unlawfully

in segregation, and he seeks permanent release from this alleged illegal restraint

and custody.

       Without reaching the merits of his claim, a magistrate judge ordered Zani

to cure a filing deficiency. In particular, the magistrate judge instructed Zani to

submit within thirty days a certified copy of his trust fund account statement, or

his case would be dismissed.

       In lieu of submitting a certified copy of his trust fund account statement or

paying the requisite filing fees, Zani filed an objection, in which he argued he

lacked control of the prison authorities, was not privy to their files, and could not

compel them to submit his account statement. The district court overruled Zani’s

objection, concluding Zani failed within the time allowed to cure the designated

deficiency. The court then dismissed the petition without prejudice. Finally, the


       1
         Because Zani appears pro se, we construe his arguments liberally. See de
Silva v. Pitts, 481 F.3d 1279, 1283 n.4 (10th Cir. 2007).

                                           -2-
court denied a certificate of appealability (COA), concluding that Zani had not

made a substantial showing of the denial of a constitutional right.

      Upon review of the record and appellate brief, we conclude the district

court lacked jurisdiction over Zani’s § 2241 petition. “A petition under 28 U.S.C.

§ 2241 attacks the execution of a sentence . . . and must be filed in the district

where the prisoner is confined.” Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir.

1996); Haugh v. Booker, 210 F.3d 1147, 1149 (10th Cir. 2000). At the time he

filed his § 2241 petition, Zani was—and still is—incarcerated in Texas and not

Colorado. Therefore, the district court in Colorado lacked jurisdiction to consider

claims for relief under § 2241. See United States v. Scott, 803 F.2d 1095, 1096

(10th Cir. 1986) (concluding the defendant needed to raise his claims in a § 2241

petition in the state where he was incarcerated).

      Consequently, we vacate the district court’s initial order and remand to the

district court for further proceedings. In particular, we direct the district court to

dismiss the petition without prejudice so Zani can refile his petition in a court of

competent jurisdiction, unless the district court concludes that transferring the

case would serve the interest of justice. 2

      2
         The “[j]urisdictional defects that arise when a suit is filed in the wrong
federal district may be cured by transfer under the federal transfer statute, 28
U.S.C. § 1631, which requires a court to transfer such an action if the transfer is
in the interest of justice.” Haugh, 210 F.3d at 1150 (internal quotation marks and
citation omitted). See also Trujillo v. Williams, 465 F.3d 1210, 1222–23 (10th
Cir. 2006) (“[W]e have interpreted the phrase ‘if it is in the interest of justice’ to
                                                                         (continued...)

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      For the foregoing reasons, we VACATE the order of the district court and

REMAND the case to the district court for further proceedings. We also grant

Zani’s request for leave to proceed without prepayment of the appellate filing fee.

                                                    Entered for the Court


                                                    Timothy M. Tymkovich
                                                    Circuit Judge




      2
        (...continued)
grant the district court discretion in making a decision to transfer an action or
instead to dismiss the action without prejudice.”). “[A] court is authorized to
consider the consequences of a transfer by taking a peek at the merits to avoid
raising false hopes and wasting judicial resources that would result from
transferring a case which is clearly doomed.” Haugh, 210 F.3d at 1150 (internal
quotation marks and citation omitted).

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