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PETE SMITH, Petitioner; v. STEPHEN M. DEWALT, Respondent

ORDER

TERRENCE BOYLE, Chief Judge, District

Petitioner, a federal inmate, seeks leave to file this habeas petition pursuant to 28 U.S.C. § 2241. This matter is before the Court for frivolity review pursuant to Rule 4 of the Federal Rules of Habeas Corpus. A case is frivolous if it lacks an arguable basis either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989).

Petitioner contends that his present federal sentence is incorrect due to sentencing guideline changes. Although Petitioner has filed his claims under 28 U.S.C. § 2241 (2000), he is attacking his conviction and sentence rather than the execution of them. Furthermore, a 28 U.S.C. § 2255 is not rendered inadequate or ineffective merely because a habeas petitioner is barred from filing a successive § 2255 motion. The Court further notes that if this petition were properly brought as a 28 U.S.C. § 2255, there would be no jurisdiction to hear Petitioner's claim because he was sentenced in the United States District Court for the Middle District of North Carolina. A prisoner wishing to challenge his conviction pursuant to § 2255 must file his petition in the court which imposed the sentence. See 28 U.S.C. § 2255.

ACCORDINGLY, this matter IS DISMISSED. SO ORDERED.

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SMITH v. DEWALT
(Sep 23, 2003)