                               UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 06-6723



MAURICE BYRD,

                                              Plaintiff - Appellant,

          versus


STATE OF NORTH CAROLINA; RICK JACKSON,

                                             Defendants - Appellees.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Graham C. Mullen, Senior
District Judge. (3:06-cv-00054)


Submitted:   August 16, 2006            Decided:   September 18, 2006


Before WILKINSON, MICHAEL, and MOTZ, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


Maurice Byrd, Appellant Pro Se.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

           Maurice      Byrd,   a   North   Carolina   inmate,   appeals     the

district court’s orders dismissing his 42 U.S.C. § 1983 (2000)

complaint and his motion for reconsideration. We vacate and remand

with instructions.

           Byrd filed a complaint pursuant to § 1983 alleging that

the North Carolina courts erred in denying his action challenging

the validity of his state conviction.           Byrd requested the district

court “construe [his] § 1983 petition as a habeas corpus, order

vacation of [his state] conviction of being a habitual felon and

remand   case   to    the   [state]   trial    court   for   resentencing,   on

possession of fire-arm [sic] by convicted felon.”                The district

court correctly noted that Byrd’s complaint was inappropriate under

§ 1983 and should be construed as a petition filed under 28 U.S.C.

§ 2254 (2000).       However, the court declined to do so and dismissed

the complaint, finding that “any habeas action pursuant to 28

U.S.C. § 2254 filed by Plaintiff must be done so in the United

States District Court for the Eastern District of North Carolina.

Consequently, because a habeas filing would be dismissed for venue

reasons by this Court, this Court declines to go through the

motions of converting Plaintiff’s filing.”

           A civil rights action under § 1983 is the appropriate

vehicle to challenge the conditions of confinement, but not the

fact or length of the confinement.            Preiser v. Rodriguez, 411 U.S.


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475, 498-99 (1973).           In order to challenge the fact or duration of

his confinement, a state prisoner must seek federal habeas corpus

relief or the appropriate state relief instead.                           Wilkinson v.

Dotson, 544 U.S. 74, 78 (2005).                  “[A] state prisoner’s § 1983

action is barred (absent prior invalidation)--no matter the relief

sought (damages or equitable relief), no matter the target of the

prisoner’s suit (state conduct leading to conviction or internal

prison proceedings)--if success in that action would necessarily

demonstrate      the    invalidity      of    confinement        or    its    duration.”

Wilkinson,    544      U.S.    at   81-83.       Because    Byrd       challenges     his

conviction,      which    affects       the   fact    of   his    confinement,        his

complaint should be construed as a § 2254 petition, as noted by the

district court.

           We    find    the     district     court    erred,         however,   in   its

dismissal of the complaint on the basis that even if it were

construed as a § 2254 petition, it would nevertheless be dismissed

for   improper    venue.         Byrd    is   incarcerated        at    the    Lanesboro

Correctional Institution in Polkton, Anson County, North Carolina,

which is located in the Western District of North Carolina.                       See 28

U.S.C. § 113 (2000).            His judgment of conviction was entered in

Wake County, North Carolina, which is in the Eastern District of

North Carolina.        Id.    He filed his § 1983 complaint in the Western

District of North Carolina.               The court determined that if it

construed Byrd’s § 1983 complaint as a § 2254 petition, it would


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still be dismissed because venue was improper since a § 2254 must

be filed in the “district within which the state court was held

which convicted and sentenced [Byrd].”       However, “a prisoner

contesting a conviction and sentence of a state court of a State

which contains two or more federal judicial districts, who is

confined in a district within the State other than that in which

the sentencing court is located, has the option of seeking habeas

corpus either in the district where he is confined or the district

where the sentencing court is located.”    Braden v. 30th Judicial

Circuit Court of Kentucky, 410 U.S. 484, 497 (1973); 28 U.S.C.

§ 2241(d).   Thus, Byrd could properly file a § 2254 in the Western

District of North Carolina.      As noted by the district court,

however, under the joint order of the District Courts for the

Eastern, Middle, and Western Districts of North Carolina regarding

Applications for Writs of Habeas Corpus by Persons in Custody Under

Judgments and Sentences of State Courts, § 2254 petitions “shall be

filed, heard, and determined in the district court for the district

within which the state court was held which convicted and sentenced

him, and the clerks of the several district courts are authorized

and directed to transfer such applications to the district herein

designated for filing, hearing, and determination.”     Therefore,

while Byrd’s § 2254 petition would ultimately need to be determined

in the Eastern District of North Carolina under the joint order, we

find it should not have been dismissed on that basis.   The better


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course would have been to transfer it to the appropriate district

in accordance with the joint order.        Thompson v. North Carolina,

1:06CV124-MU-02, 2006 U.S. Dist. LEXIS 20864, at *2 (W.D.N.C. April

13, 2006).

           Accordingly, we vacate the district court’s orders and

remand with instructions that Byrd’s filing be construed as a

§ 2254 petition and transferred to the appropriate district court.

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.



                                                    VACATED AND REMANDED




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