Opinion · Court of Appeals for the Ninth Circuit
United States v. Larry W.G. Giddings
740 F.2d 770
- Type
- Opinion
- Court
- Court of Appeals for the Ninth Circuit
- Jurisdiction
- Federal
- Date
- 1984-08-17
- Topic
- general
How later courts describe this case
- holding that a 12 petitioner may challenge the execution of a sentence by bringing a petition under 28 U.S.C. 13 § 2241
- holding “[r]eview of an execution of a sentence may be had through petition for a writ of habeas corpus under 28 U.S.C. § 2241.”
- the federal prisoner challenged the execution of his sentence rather than the sentence itself and 2
- should have filed a 28 U.S.C. § 2241 petition in the district of his confinement rather than a Rule 3
- 35 motion in the sentencing court
- federal prisoner’s presentence time credit claim relates to the a 16
- execution of his sentence and is properly brought 28 U.S.C. § 2241
- “Review of the execution of a sentence may be 5 had through petition for a writ of habeas corpus under 28 U.S.C. § 2241.”
Citator
UpLaw has not yet analyzed United States v. Larry W.G. Giddings. The absence of a flag is not a finding that it is good law.
- Cited by
- 140 opinions
UNITED STATES v. GIDDINGS,740 F.2d 770(9th Cir. 1984)
UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE, v. LARRY W.G. GIDDINGS,
DEFENDANT-APPELLANT.
No. 83-3047.
United States Court of Appeals, Ninth Circuit.
Submitted July 5, 1984.fn*
Decided August 17, 1984.
William Flenniken, San Francisco, Cal., for defendant-appellant.
Before SKOPIL and NELSON, Circuit Judges, and WEIGEL, Senior District Judge.fn**
[2] Appellee moves to dismiss the appeal because the notice of appeal was not filed within ten days of entry of the order appealed from. Fed.R.App.P. 4(b). Giddings mailed his notice of appeal four days after he received the order. Because he did all that reasonably could be expected, the motion to dismiss is denied.Fallen v. United States,378 U.S. 139, 144, 84 S.Ct. 1689, 1692, 12 L.Ed.2d 760 (1964).
[3] Giddings claims he is entitled under 18 U.S.C. § 3568 to credit against his sentence for time spent in custody prior to sentencing. His complaint addresses the execution of his sentence, rather than the sentence itself.United States v.Clayton,588 F.2d 1288, 1292 (9th Cir. 1979). Accordingly, the district court properly denied Rule 35(a) relief.Aldridge v.United States,405 F.2d 831, 831-32 (9th Cir. 1969);Lee v.United States,400 F.2d 185, 188-89 (9th Cir. 1968).
[4] Nor is relief available under28 U.S.C. § 2255. It is true that, pursuant to that statute, this court has heretofore considered prisoner claims to sentencing credit.United Statesv. Carbo,474 F.2d 698,Page 772699 (9th Cir. 1973);Myers v. UnitedStates,446 F.2d 232, 233 (9th Cir. 1971);Williams v. UnitedStates,440 F.2d 684, 685 (9th Cir. 1971). However, in each instance, the challenged sentence was imposed under a statutory scheme which gave responsibility to the courts. The Bail Reform Act of 1966, 18 U.S.C. § 3568, made this responsibility exclusively an administrative function of the Attorney General.Soyka v. Alldredge,481 F.2d 303, 305 n. 6 (3d Cir. 1973);Lee,400 F.2d at 188-89. Appellant was sentenced on September 9, 1980 and thus his claim for credit challenges the Attorney General's execution of sentence rather than the district court's imposition. A petition under section 2255 can test only the propriety of the sentence imposed, not the manner of execution.Brown v. United States,610 F.2d 672, 677 (9th Cir. 1980);Ridenour v. United States,446 F.2d 57 (9th Cir. 1971).
[5] Review of the execution of a sentence may be had through petition for a writ of habeas corpus under28 U.S.C. § 2241. The district court below could not treat the Rule 35 motion as a habeas petition because the writ can issue only from a court with jurisdiction over the prisoner or his custodian.Braden v. 30thJudicial Circuit Court,410 U.S. 484, 494-95, 93 S.Ct. 1123, 1129-1130, 35 L.Ed.2d 443 (1973);Brown,610 F.2d at 677. Any habeas petition in this case must be addressed to the district court in the district where appellant is confined.Brown,610 F.2d at 677.
[6] AFFIRMED.Page 1442