                Case: 12-14971     Date Filed: 06/07/2013   Page: 1 of 5


                                                               [DO NOT PUBLISH]



                  IN THE UNITED STATES COURT OF APPEALS

                           FOR THE ELEVENTH CIRCUIT
                             ________________________

                                   No. 12-14971
                               Non-Argument Calendar
                             ________________________

                      D.C. Docket No. 3:99-cr-00018-RV-MD-1



UNITED STATES OF AMERICA,

                            Plaintiff-Appellee,

versus

KENNETH BERNARD NICKSON,

                            Defendant-Appellant.

                             ________________________

                     Appeal from the United States District Court
                         for the Northern District of Florida
                           ________________________

                                     (June 7, 2013)

Before HULL, WILSON and JORDAN, Circuit Judges:

PER CURIAM:

         Kenneth Nickson, a federal prisoner proceeding pro se, appeals the district

court’s denial of his motion for modification of his sentence in his bank-robbery
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case on the grounds that the district court lacked jurisdiction. In his motion,

Nickson asked the district court to amend its instructions regarding how the

sentence would be executed. On appeal, Nickson argues that the district court had

jurisdiction to modify the sentence because it had originally imposed the sentence

and because it had modified his sentence in another case, which ran partially

concurrent with his bank-robbery sentence. The government argues that Nickson’s

notice of appeal was untimely.

      We review de novo whether a district court has jurisdiction to modify a

defendant’s sentence. United States v. Diaz-Clark, 292 F.3d 1310, 1315 (11th Cir.

2002). Federal courts must “look behind the label” of an inmate’s pro se motion

and determine whether there is any framework under which his claim might be

cognizable. United States v. Jordan, 915 F.2d 622, 624–25 (11th Cir. 1990).

District courts do not have authority to modify a prisoner’s sentence, except to the

extent provided by the federal statutory provisions controlling sentencing and the

Federal Rules of Criminal Procedure. 18 U.S.C. § 3582(c); see Diaz-Clark, 292

F.3d at 1315–18 (discussing relevant statutes and rules that provide for

modification of a sentence).

      If a federal prisoner wants to challenge the execution of his sentence, rather

than its validity, he may do so through a 28 U.S.C. § 2241 petition. Antonelli v.

Warden, U.S.P. Atlanta, 542 F.3d 1348, 1352 (11th Cir. 2008). A federal prisoner


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“may proceed under § 2241 only when he raises claims outside the scope of

§ 2255(a).” Id. at 1351 n.1; see 28 U.S.C. § 2255(a) (providing that a prisoner may

file a motion to vacate, set aside, or correct a sentence on the grounds that (1) the

sentence was imposed in violation of United States laws or the Constitution; (2) the

court lacked jurisdiction to impose the sentence; (3) the sentence exceeded the

statutory maximum punishment; or (4) the sentence is otherwise subject to

collateral attack). A prisoner seeking relief under § 2241 must, as a jurisdictional

prerequisite, exhaust his administrative remedies. Skinner v. Wiley, 355 F.3d 1293,

1295 (11th Cir. 2004) (per curiam).

      Under Federal Rule of Appellate Procedure 4(b)(1)(A), an appellant in a

criminal case must file his notice of appeal within 14 days of the entry of final

judgment or the government’s notice of appeal. However, Federal Rule of

Appellate Procedure 4(a)(1)(B) provides that a notice of appeal in a civil case must

be filed within 60 days after entry of judgment when one of the parties is the

United States.

      Looking “behind the label” of Nickson’s motion, it is a close question

whether Nickson’s claim is a challenge to the execution of his sentence or a

collateral attack on the validity of the district court’s order commencing his

partially concurrent sentence. Neither the parties nor the district court have

addressed this issue.


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      If the district court were to construe Nickson’s motion as a § 2241 petition,

his notice of appeal, filed fewer than 60 days after entry of the court’s order on his

motion, was timely filed under Federal Rule of Appellate Procedure 4(a)(1)(B).

Even if the claim properly challenges the execution of his sentence, however, it is

unclear from the record whether the district court lacked jurisdiction to consider

the claim. If construed as a § 2241 petition, Nickson’s motion was subject to the

jurisdictional prerequisite that he exhaust his administrative remedies. See

Skinner, 355 F.3d at 1295. Because the district court did not construe Nickson’s

motion as a § 2241 petition, it made no findings as to whether he had exhausted his

administrative remedies, and neither party has addressed the issue on appeal.

      Finally, if the district court were to construe Nickson’s motion as a § 2241

petition, it was not filed in the proper court. A § 2241 petition must be brought in

the district in which the inmate is incarcerated. 28 U.S.C. § 2241(d); see also

Rumsfeld v. Padilla, 542 U.S. 426, 443, 124 S. Ct. 2711, 2722 (2004). Thus, if the

district court were to determine that Nickson’s claim is a § 2241 petition, the case

must be transferred to the Northern District of Alabama for proceedings to

determine whether Nickson has exhausted his administrative remedies.

      Accordingly, we vacate and remand the district court’s order so that the

district court can consider, in the first instance, whether Nickson’s claim

constitutes a challenge to the execution or validity of his sentence.


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VACATED AND REMANDED.




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