United States v. Nest ( 1996 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-20011
Summary Calendar
UNITED STATES OF AMERICA
Plaintiff-Appellee,
versus
JOHN NEST, a.k.a.
Francisco Perez
Defendant-Appellant.
Appeal from the United States District Court
For the Southern District of Texas
USDC No. CR-94-285-2
October 23, 1996
Before HIGGINBOTHAM, WIENER, and BENAVIDES, Circuit Judges.
PER CURIAM:*
John Nest, Texas prisoner # 66527-079, appeals the district
court’s order denying his “Motion for Order to Remission [sic] of
Fine.” This court finds that it can not construe Nest’s motion in
any way that allows review or relief.
This court will not review this as a post-judgment criminal
motion. Nest does not argue that his motion should be interpreted
this way. Furthermore, we will not interpret it as such because
*
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this opinion should not be published and is not precedent except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.
the motion itself does not seek a judgment of acquittal, Rule
29(c), request a new trial, Rule 33, challenge the indictment or
jurisdiction, Rule 34, or ask for correction of a clerical mistake,
Rule 36. Even if we were to interpret it as a post-judgment
criminal motion, Nest filed his motion more than ten days after the
district court entered judgment. FED. R. APP. P. 4(b). As Nest has
not argued for an extension of time due to excusable neglect in
filing, id., the motion is not timely.
This court can not review Nest’s motion as a § 2241 habeas
corpus petition. Nest is incarcerated in Fairtown, New Jersey.
However, Nest filed his motion in the Southern District of Texas.
A § 2241 motion must be brought in the district in which a prisoner
is incarcerated; if not, the court lacks jurisdiction. 28 U.S.C.
§ 2241; Bell v. United States, 48 F.3d 1042, 1043-44 (5th Cir.
1995).
We also can not consider Nest’s motion as a prisoner’s civil
rights claim under 42 U.S.C. § 1983. It is possible that Nest
might be able to articulate a valid § 1983 claim if he could state
facts showing that the prison was forcing him to do without certain
basic human necessities, so as to “threaten [his] health and safety
and deprive [him] of basic hygiene and medical treatment . . . .”
See Williams v. Edwards, 547 F.2d 1206, 1215 (5th Cir. 1977).
However, because Nest has never filed any pleading against the
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prison warden or any other prison staff, no § 1983 claim is
currently before this court.
Finally, reviewing Nest’s motion as a motion to vacate, set
aside, or correct sentence pursuant to 28 U.S.C. § 2255, we are
unable to offer Nest relief. Nest’s motion does not challenge his
confinement, but only the amount of his fine. Such a motion is not
within the ambit of § 2255. United States v. Segler, 37 F.3d 1131,
1137 (5th Cir. 1994) (holding that Congress “meant to limit the
types of claims cognizable under § 2255 to claims relating to
unlawful custody”); United States v. Gaudet, 81 F.3d 585, 592 (5th
Cir. 1996). The district court thus correctly dismissed this
motion.
AFFIRMED.
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