United States v. Romero-Soto ( 1996 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________
No. 96-40083
Conference Calendar
__________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RODOLFO ROMERO-SOTO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. L-95-CV-126
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April 18, 1996
Before DUHÉ, DeMOSS, and DENNIS, Circuit Judges.
PER CURIAM:*
Rodolfo Romero-Soto appeals from the district court's
dismissal of his 28 U.S.C. § 2255 motion which the district court
construed as a 28 U.S.C. § 2241 petition. Romero-Soto's
appellate brief is construed as a motion to proceed in forma
pauperis (IFP) on appeal. Because Romero-Soto was challenging
the execution of his sentence, his motion was properly construed
as a 28 U.S.C. § 2241 petition. See United States v. Gabor, 905
F.2d 76, 77 (5th Cir. 1990).
*
Pursuant to Local Rule 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that this opinion should not be published and is not precedent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 Local Rule
47.5.4.
No. 96-40083
-2-
Romero-Soto is confined in Big Spring, Texas, which is
located in Howard County, Texas. Thus, jurisdiction is proper in
the Northern District of Texas. See 28 U.S.C. § 124(a)(3). The
Southern District of Texas lacked jurisdiction to afford Romero-
Soto the relief he requested. Gabor, 905 F.2d at 78. Because
the appeal raises no legal issue of arguable merit, it is
frivolous. See Jackson v. Dallas Police Dep't, 811 F.2d 260, 261
(5th Cir. 1986). Therefore, Romero-Soto's motion to proceed IFP
on appeal is DENIED and the appeal is DISMISSED. See 5th Cir. R.
42.2.