                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                         JUN 30 1998
                               TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                              Clerk

 ARTHUR MORRISON

             Petitioner-Appellant,

 v.                                              Nos. 97-6351 & 97-6416
                                                (D.C. No. CIV-97-1411-A)
 BOB GUZIK, UNITED STATES                     (Western District of Oklahoma)
 MARSHALS SERVICE,

             Respondents-Appellees.



                          ORDER AND JUDGMENT            *




Before PORFILIO , KELLY , and HENRY , Circuit Judges.




      In case number 97-6351, Arthur Morrison appeals the district court’s

denial of his habeas corpus petition. In case number 97-6416, Mr. Morrison

appeals the district court’s order striking his “Addendum to Petition for Writ of

Habeas Corpus.” Because we hold that we lack jurisdiction over Mr. Morrison’s

      *
             After examining the briefs and appellate record, this panel has
determined unanimously to grant Arthur Morrison’s request for a decision on the
briefs without oral argument. This case is therefore 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 This order and judgment is not binding precedent, except under the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.
habeas petition, we need not determine whether the district court erred when it

struck his addendum.

      In March 1997, the United States District Court for the Southern District of

New York sentenced Mr. Morrison to a term of 25 years imprisonment and three

years supervised release after a jury found that he had made threatening interstate

communications and committed wire fraud in violation of 18 U.S.C. §§ 875(c),

875(d), and 1343. Mr. Morrison appealed his conviction and sentence to the

United States Court of Appeals for the Second Circuit, and that appeal is

apparently still pending.

      Following his sentencing, Mr. Morrison was temporarily held at the

Federal Transfer Center in Oklahoma City, Oklahoma. While Mr. Morrison was

being held at the Federal Transfer Center, he filed a habeas corpus petition with

the United States District Court for the Western District of Oklahoma. In this

petition, which requested relief under 28 U.S.C. § 2241, Mr. Morrison alleged

that: (1) the sentence he received exceeds the statutory maximum, and he has

already served more time than the maximum sentence allowed by law; (2) the

district court erred in departing upward from the sentencing guidelines; (3) he

was denied the effective assistance of counsel when the district court improperly

allowed him to represent himself at a competency hearing; (4) the trial judge

should have recused herself from the case; and (5) the government failed to


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establish the interstate nexus required to support his convictions. Soon after he

filed his petition, Mr. Morrison was transferred to a federal penitentiary in Terre

Haute, Indiana.

      The district court referred Mr. Morrison’s petition to a magistrate judge,

who, in his report and recommendation, concluded that Mr. Morrison should have

filed his petition under 28 U.S.C. § 2255 rather than 28 U.S.C. § 2241 and

recommended that the district court dismiss the petition without prejudice. The

district court subsequently held that the petition should be dismissed without

prejudice. The district court, however, based its decision on a slightly different

ground: It ruled that it lacked jurisdiction because even if § 2241 constituted the

proper basis for Mr. Morrison’s petition, a federal district court in Oklahoma

lacked jurisdiction over the warden of a prison in Indiana (Mr. Morrison’s

current site of detention) and, thus, could not order Mr. Morrison’s release even

if it determined that his claims were meritorious.

      After Mr. Morrison filed his notice of appeal, he attempted to file a

document entitled “Plaintiff’s Addendum to Petition for Writ of Habeas Corpus”

with the district court. The district court struck this document from the record on

the ground that Mr. Morrison had failed to attach a certificate of mailing to the

named defendants or their counsel. The district court subsequently refused to

issue a certificate of appealability to Mr. Morrison. Mr. Morrison now appeals


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both the district court’s decision to dismiss his petition and to strike his

addendum.

       Mr. Morrison cited 28 U.S.C. § 2241 rather than 28 U.S.C. § 2255 as the

basis of his petition. It is well-established that “[a] petition under 28 U.S.C. §

2241 attacks the execution of a sentence rather than its validity and must be filed

in the district where the prisoner is confined.”   See Bradshaw v. Story , 86 F.3d

164, 166 (10th Cir. 1996). On the other hand, “[a] 28 U.S.C. § 2255 petition

attacks the legality of detention and must be filed in the district that imposed the

sentence.” Id. (citation omitted).

       Each of the errors that Mr. Morrison alleges in his petition occurred prior

to or during sentencing. Even his claim that he has served more than the

maximum time allowed by law does not assail the “execution” of his sentence.

Rather, this claim is ultimately predicated on his contention that the trial court

erred when it imposed a sentence that exceeded the statutory maximum. And “28

U.S.C. § 2255, not § 2241, is the proper means of attacking errors that occurred

during or before sentencing.”     Ojo v. INS , 106 F.3d 680, 683 (5th Cir. 1997).

Thus, while Mr. Morrison has styled his petition as arising under § 2241, all of

the errors he alleges are properly within the province of a § 2255 petition.

       While it is true that “a § 2241 petition attacking matters within the

province of a § 2255 petition should be construed as a § 2255 petition,”       id. , we


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lack the jurisdiction to review a § 2255 petition attacking a sentence imposed by

a New York federal court,   see Bradshaw , 86 F.3d at 166. Accordingly, we

hereby affirm the district court’s decision denying him a certificate of

appealability in case number 97-6351. And because we have determined that the

district court lacked jurisdiction to consider Mr. Morrison’s habeas corpus

petition, we dismiss his appeal in case number 97-6416 as moot. Finally, our

decision moots the motion to expedite that Mr. Morrison filed in 97-6351 as well

as his motion for reconsideration of the clerk’s denial of his motion to expedite

in 97-6416.



                                                    Entered for the Court,



                                                    Robert H. Henry
                                                    Circuit Judge




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