Pardue vs. Conner, (5th Cir. 1999)

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IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 98-40854

Conference Calendar

DAVID PARDUE,

Petitioner-Appellant,

versus

N.L. CONNER, Warden, Federal

Correctional Institution, Texarkana,

Respondent-Appellee.

Appeal from the United States District Court

for the Eastern District of Texas

USDC No. 5:98-CV-153

April 16, 1999

Before JONES, SMITH, and DUHÉ, Circuit Judges.

PER CURIAM:* David Pardue, federal prisoner #04062-010, appeals the dismissal without prejudice of his habeas corpus petition for lack of jurisdiction. Pardue filed his petition under 28 U.S.C. § 2241. However, Pardue is challenging the legality of his conviction and sentence, rather than the execution of his sentence. The district court properly construed Pardue's petition as a motion to vacate, set aside, or correct sentence under § 2255. Solsona v. Warden, F.C.I., 821 F.2d 1129, 1131-32 (5th Cir. 1987).

Pardue filed his § 2255 motion in the district court for the Eastern District of Texas. He was sentenced, however, in the district court for the Western District of Arkansas. Thus, the only court with jurisdiction to entertain Pardue's motion is the district court for the Western District of Arkansas. See Ojo v. I.N.S., 106 F.3d 680, 683 (5th Cir. 1997). The district court did not err by dismissing without prejudice Pardue's § 2255 motion for lack of jurisdiction. See Solsona, 821 F.2d at 1132.

The judgment of the district court is AFFIRMED.

AFFIRMED.

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

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