Lovern v. U.S., 87-7285

• Decision Date: 16 February 1988
• Docket Number: No. 87-7285,87-7285
• Parties: Unpublished Disposition NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit. W. Michael LOVERN, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 11

840 F.2d 11

Unpublished Disposition

NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.

W. Michael LOVERN, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

No. 87-7285.

United States Court of Appeals, Fourth Circuit.

Submitted Nov. 30, 1987.

Decided Feb. 16, 1988.

Before K.K. HALL, SPROUSE, and WILKINSON, Circuit Judges.

W. Michael Lovern, appellant pro se.

James Gordon Carpenter, Assistant U.S. Attorney, for appellee.

PER CURIAM:

W. Michael Lovern appeals the denial of his 28 U.S.C. Sec. 2241 petition which he filed in the Eastern District of North Carolina while he was undergoing evaluation at Butner Federal Correctional Institute. He requested that his conviction, which was imposed by the court sitting in the Eastern District of Virginia, be vacated. The North Carolina district court denied the petition because Lovern was released from Butner before the action was filed. In addition, the court stated that Lovern's attack on his conviction was properly brought pursuant to 28 U.S.C. Sec. 2255. As such, it would have to be brought in the court that sentenced him.

Although Lovern alleged that his petition was received by the court while he was still in custody in North Carolina, we affirm the district court on the ground that 28 U.S.C. Sec. 2241 may not be used to attack the imposition of one's sentence absent a showing that the remedy by motion under Sec. 2255 is inadequate or ineffective. 28 U.S.C. Sec. 2255. We find that Lovern's remedy by motion under Sec. 2255 is adequate to test the legality of his detention. Because the dispositive issues have recently been decided authoritatively, we dispense with oral argument and affirm the judgment of the district court.

AFFIRMED.