                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 04-7592



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,

          versus


DOUGLAS WALTER CHILDS,

                                            Defendant - Appellant.


Appeal from the United States District Court for the Western
District of North Carolina, at Asheville.  Lacy H. Thornburg,
District Judge. (CR-95-20)


Submitted:   February 23, 2005            Decided:    March 16, 2005


Before NIEMEYER, MOTZ, and TRAXLER, Circuit Judges.


Vacated and remanded with instructions by unpublished per curiam
opinion.


Douglas Walter Childs, Appellant Pro Se. Gretchen C. F. Shappert,
United States Attorney, Charlotte, North Carolina, Jerry Wayne
Miller, Thomas Richard Ascik, OFFICE OF THE UNITED STATES ATTORNEY,
Asheville, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

          Douglas Walter Childs appeals the district court’s order

construing     his   motion   for    a   temporary    restraining    order,

injunction, and show cause order as a successive 28 U.S.C. § 2255

(2000) motion and dismissing the motion as successive.            We vacate

the district court’s order and remand for further proceedings as

set forth below.

          Childs pleaded guilty to kidnapping.              In addition to

imposing a 290-month sentence, the district court ordered Childs to

pay restitution of $44,347.20.       Although the criminal judgment did

not specifically delegate authority to the Bureau of Prisons (BOP)

to set the amount and timing of payments, the district court did

not set a payment schedule and it appears that the BOP has been

determining the installment payments.

             In his motion, Childs asserted that the district court

had improperly delegated its authority to set the amount and timing

of his restitution payments to the BOP in violation of United

States v. Miller, 77 F.3d 71, 78 (4th Cir. 1996), and United

States v. Johnson, 48 F.3d 806, 808 (4th Cir. 1995).          On appeal, he

explains that he wants collection to be deferred until his release

from prison.

          We    find   that   Childs’       motion   only   challenges   the

implementation of the restitution portion of his sentence. Because

he does not seek to be released from custody, we construe his


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motion as a petition for habeas corpus relief arising under 28

U.S.C. § 2241 (2000).          See Blaik v. United States, 161 F.3d 1341,

1342-43 (11th Cir. 1998) (collecting cases holding that a § 2255

motion   may    not     be   used   for   challenging        fines   or   restitution

orders); cf. United States v. Miller, 871 F.2d 488, 489-90 (4th

Cir. 1989) (holding that a claim for jail time credits should be

brought under § 2241).

            A § 2241 petition must be brought in the district in

which petitioner is incarcerated, see In re Jones, 226 F.3d 328,

332 (4th Cir. 2000), and Childs is presently incarcerated in

Atlanta, Georgia.            Accordingly, we vacate the district court’s

order and remand for the district court to determine whether

transferring Childs’ § 2241 petition to the proper federal district

court would serve the interests of justice, see 28 U.S.C. § 1631

(2000), or whether the action is more appropriately dismissed

without prejudice to allow Childs to file his action in 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
                                                                 WITH INSTRUCTIONS




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