*

 The case is unanimously ordered submitted without oral argument

pursuant to Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). This order and

judgment is not binding precedent, except under the doctrines of law of the case,

res judicata, and collateral estoppel. The Court generally disfavors the citation of

orders and judgments; nevertheless, an order and judgment may be cited under the

terms and conditions of 10th Cir. R. 36.3.

F I L E D

United States Court of Appeals

Tenth Circuit

JUL 11 2001

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

JUAN DE DIOS MAGALLANESROBLEDO,

Petitioner - Appellant,

v.

UNITED STATES OF AMERICA;

UNITED STATES DEPARTMENT

OF JUSTICE; IMMIGRATION AND

NATURALIZATION SERVICE,

Respondents - Appellees.

No. 01-1090

(No. 00-Z-2280)

(District of Colorado)

ORDER AND JUDGMENT *

Before EBEL , KELLY , and LUCERO , Circuit Judges.

Juan de Dios Magallanes-Robledo, an inmate at the Federal Correctional

Institution in Florence, Colorado, filed a pro se application for a writ of habeas

corpus under 28 U.S.C. § 2241 in the United States District Court for the District

of Colorado. The district court concluded that the application should have been
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brought under 28 U.S.C. § 2255 in the District of Kansas, which was the district

that imposed the sentence; consequently, the application was denied and

dismissed without prejudice. Magallanes appeals, and we affirm.

Magallanes pleaded guilty to illegal reentry following deportation

subsequent to an aggravated felony conviction in violation of 8 U.S.C. § 1326 and

was sentenced to sixty-three months imprisonment by the United States District

Court for the District of Kansas. Two weeks later, he filed a motion to withdraw

his plea, which the district court denied. On direct appeal, this Court affirmed. 

United States v. Magallanes-Robelo [sic] , No. 00-3212, 2001 WL 179789 (10th

Cir. Feb. 23, 2001). This habeas case was commenced November 17, 2000, and

the district court dismissed on February 12, 2001.

Magallanes challenges the legality of his sentence on the grounds that he

received ineffective assistance of counsel and that his sentence is based on

alleged constitutional errors that occurred during his 1990 prosecution for

aggravated sexual battery and his deportation hearing in 1993. We have

construed Magallanes’s filings in this case liberally. See Curley v. Perry , 246

F.3d 1278, 1281 (10th Cir. 2001).

The district court’s denial and dismissal of Magallanes’s habeas application

is subject to de novo appellate review. Bradshaw v. Story , 86 F.3d 164, 166 (10th

Cir. 1996). Because Magallanes’s challenge is to the legality of his sentence, the
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district court correctly concluded that Magallanes’s petition should not have been

brought under 28 U.S.C. § 2241 in the District of Colorado, but rather under 28

U.S.C. § 2255 in the District of Kansas. See Haugh v. Booker , 210 F.3d 1147,

1149 (10th Cir. 2000) (“A petition under 28 U.S.C. § 2241 attacks the execution

of a sentence rather than its validity and must be filed in the district where the

prisoner is confined. A 28 U.S.C. § 2255 petition attacks the legality of

detention, and must be filed in the district that imposed the sentence.” (quotations

omitted)); see also 28 U.S.C. § 2255 para. 5. For substantially the same reasons

set forth by the district court, we AFFIRM. Magallanes’s motions requesting the

transcript of his trial and for appointment of counsel are DENIED . The motion to

proceed on appeal without prepayment of costs or fees is GRANTED . 

The mandate shall issue forthwith.

Entered for the Court,

Carlos F. Lucero

Circuit Judge