                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 07-1191



RANDY LEE HAMMITT,

                                            Petitioner - Appellant,

          versus


UNITED STATES PROBATION OFFICE; D. MARK HALL;
JAMES KENT,

                                           Respondents - Appellees.


Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Graham C. Mullen, Senior
District Judge. (3:07-cv-00065)


Submitted:   July 31, 2007                 Decided:   August 9, 2007


Before MOTZ and TRAXLER, Circuit Judges, and WILKINS, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Randy Lee Hammitt, Appellant Pro Se.


Unpublished opinions are not binding precedent in this circuit.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

          Randy Lee Hammitt appeals from the district court’s

dismissal of his petition under 28 U.S.C. § 2241 (2000),1 in which

Hammitt challenged his conviction for criminal contempt.       The

district court concluded that it lacked jurisdiction over the

petition because Hammitt was neither incarcerated when his § 2241

petition was considered nor incarcerated at the time that he filed

the petition. The district court held in the alternative that even

if Hammitt were considered to be in custody, he had failed to raise

any meritorious claims in his petition. Upon review of the record,

we find that while the district court possessed jurisdiction over

Hammitt’s petition,2 Hammitt’s claims are not cognizable under

§ 2241.



     1
      Hammitt’s § 2241 petition was originally filed with this
court; however, we declined to exercise our authority to entertain
the petition and transferred it back to the district court for
consideration pursuant to Fed. R. App. P. 22(a). In re Hammitt,
No. 06-7877 (4th Cir. Jan. 22, 2007) (unpublished).
     2
      A petitioner is not required to be subject to imprisonment to
be regarded as in custody; rather, the relevant query is whether
the petitioner’s status subjects him to a restraint on his liberty,
or the imminent threat of such a restraint.          See Jones v.
Cunningham, 371 U.S. 236, 242 (1963). For the purposes of relief
under the federal habeas corpus statutes, probation constitutes
custody, as a probationer is subject to restraints not shared by
the public generally.    See Olson v. Hart, 965 F.2d 940, 943-44
(10th Cir. 1992); Tinder v. Paula, 725 F.2d 801, 803 (1st Cir.
1984); Hahn v. Burke, 430 F.2d 100, 102 (7th Cir. 1970).         In
October 2006, Hammitt was sentenced to probation for a term of one
year, with six months’ home detention.      Hammitt’s status as a
probationer at the time he filed his petition was sufficient to
meet the “in custody” requirement for proceeding under § 2241(c).

                              - 2 -
           A federal prisoner seeking to challenge the legality of

his conviction or sentence must proceed pursuant to 28 U.S.C.

§ 2255 (2000) in the district of conviction, while § 2241 petitions

are   generally   reserved   for    challenges    to     the   execution   of    a

prisoner’s sentence.    In re Vial, 115 F.3d 1192, 1194 n.5 (4th Cir.

1997). However, in limited circumstances, § 2255 is “inadequate or

ineffective” to test the legality of the detention.                  In those

cases, a prisoner may file a § 2241 petition in the district of his

confinement to challenge his conviction.            In re Jones, 226 F.3d

328, 333 (4th Cir. 2000).          In Jones, this court concluded that

§ 2255 is inadequate or ineffective, and § 2241 may be used:

      to test the legality of a conviction when: (1) at the time of
      conviction, settled law of this circuit or the Supreme Court
      established the legality of the conviction; (2) subsequent to
      the prisoner’s direct appeal and first § 2255 motion, the
      substantive law changed such that the conduct of which the
      prisoner was convicted is deemed not to be criminal; and
      (3) the prisoner cannot satisfy the gatekeeping provisions of
      § 2255 because the new rule is not one of constitutional law.

Jones, 226 F.3d at 333-34.

           Hammitt’s § 2241 petition challenged the legality of his

conviction, not the execution of his sentence; therefore, Hammitt’s

claims should have been presented in a motion under § 2255.                  See

Vial, 115 F.3d at 1194 n.5.              Additionally, Hammitt’s petition

failed   to   demonstrate    that    §    2255   would    be    inadequate      or

ineffective to test the legality of his detention.              See Jones, 226

F.3d at 333. Therefore, Hammitt has failed to establish any proper

grounds for relief pursuant to §2241.

                                    - 3 -
          Accordingly, we affirm the district court’s order.    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




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