                                                                          FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit
                    UNITED STATES COURT OF APPEALS                  June 16, 2008
                                 TENTH CIRCUIT                  Elisabeth A. Shumaker
                                                                    Clerk of Court


 UNITED STATES OF AMERICA,

               Plaintiff-Appellee,                      No. 07-4179
          v.                                           District of Utah
 DAVID PAUL STORM,                                (D.C. No. 1:01-CR-4 TS)

               Defendant-Appellant.


                           ORDER AND JUDGMENT *


Before BRISCOE, McKAY and McCONNELL, Circuit Judges.


      On January 17, 2001, Petitioner David Storm was charged by indictment

with two counts of being a felon in possession of a firearm and ammunition in

violation of 18 U.S.C. § 922(g)(1). At the time of the indictment, Mr. Storm was

incarcerated in a Utah state prison. He was brought before the United States

District Court for the District of Utah on a writ of habeas corpus in May of 2001,


      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination
of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). 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 This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and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. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
and he subsequently pleaded guilty to the unlawful transportation of firearms by a

previously convicted felon in violation of 18 U.S.C. § 922(g)(1). The court

sentenced him to 110 months’ imprisonment to run concurrently with a previously

imposed state sentence, followed by 36 months’ supervised release.

      In January of 2006, Mr. Storm filed a motion under 28 U.S.C. § 2255 to

vacate, set aside, or correct his sentence. Because he filed his petition after the

one-year statute of limitations expired, the court dismissed it. In the alternative,

the court found that his claims were meritless.

      In June of 2007, Mr. Storm filed a petition entitled “Motion to Clarify

Sentence Description On Judgment In A Criminal Case.” He argued that he was

entitled, under the sentence imposed by the federal district court, to credit for his

time served dating back to August 21, 2000—the date he was received into state

custody. The Bureau of Prisons had calculated his credit for time served from

August 14, 2001—the date he was sentenced in federal court. Construing his

motion as a petition under 28 U.S.C. § 2241, the district court dismissed it

without prejudice because it was not filed in the “district where [Mr. Storm] is

currently confined.” R. Vol. I, Mem. & Order, at 2 (internal quotation marks

omitted). Mr. Storm then filed a motion for reconsideration, arguing that he was

not asking for a review of the Bureau of Prison’s calculations, but rather a

“clarification of what ha[d] already occurred during his sentencing hearing,” so

that the “oral sentence imposed by” the sentencing court could be “put[] into

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effect.” R. Vol. I, Motion for Reconsideration, at 1–2. The district court, in a

longer opinion, again denied Mr. Storm’s petition. He now appeals from this

denial.

      Before reaching the merits, we must determine how to construe Mr.

Storm’s habeas petition. Though his argument is not entirely clear, we best

understand it as a request for a nunc pro tunc order effectuating what he believes

to be the sentencing court’s oral judgment. His claim, then, is not that his

conviction and sentence were improper, which would fall within 28 U.S.C. §

2255, but that his sentence, as he understands it, is being improperly executed by

the Bureau of Prisons. This falls squarely within § 2241. Davis v. Roberts, 425

F.3d 830, 833 (10th Cir. 2005) (“a challenge to the execution of a sentence should

be brought under 28 U.S.C. § 2241.”). “Requests for sentence credit, or for

recalculation of time yet to serve . . . must be presented to the Attorney General

(or [his] delegate, the Bureau of Prisons), and adverse decisions may be reviewed

by an action under 28 U.S.C. § 2241 . . . .” Romandine v. United States, 206 F.3d

731, 736 (7th Cir. 2000).

      A petition brought under 28 U.S.C. § 2241 “must be filed in the district

where the prisoner is confined.” Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir.

1996); see also 28 U.S.C. § 2241(d); United States v. Mittelsteadt, 790 F.2d 39,

41 (7th Cir. 1986); United States v. Scott, 803 F.2d 1095, 1096 (10th Cir. 1986).

In Mr. Storm’s case, this is the District of Colorado. He filed his § 2241 petition

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in the District of Utah, which lacked jurisdiction to rule on the merits of the

claim. The district court’s original dismissal without prejudice was therefore

appropriate, and so we must vacate the district court’s subsequent response to Mr.

Storm’s motion for reconsideration, which it decided on the merits. The district

court is directed to dismiss the petition without prejudice, so that Mr. Storm can

refile his petition in a court of competent jurisdiction. 1

      The judgment of the United States District Court for the District of Utah is

VACATED and the case is REMANDED for further proceedings in accordance

with this opinion.

                                                 Entered for the Court,

                                                 Michael W. McConnell
                                                 Circuit Judge




      1
       We remind Mr. Storm that he must exhaust his administrative remedies
with the BOP, if he has not already done so.

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