* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions 10th Cir. R. 36.3.



### UNITED STATES COURT OF APPEALS Filed 8/15/96 TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. JOSE D. RODRIGUEZ, Defendant-Appellant. No. 95-6392 (D.C. No. CR-92-82-A) (W.D. Okla.)



### ORDER AND JUDGMENT *

Before SEYMOUR , Chief Judge, KELLY and LUCERO , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. Fed. R. App. P. 34(a); 10th Cir. R. 3 41.1.9. The case is therefore ordered submitted without oral argument. Jose D. Rodriguez, a federal prisoner, brought a mo tion for post-conviction1 Of course, we are obliged to construe pro se plead ings liberally. Haines

v. Kerner , 404 U.S. 519, 520-21 (1972). -2- relief pursuant to 28 U.S.C. § 2255 for the alleged violation of his constitutional rights. The district court denied his motion for l ack of jurisdiction. Mr. Rodriguez appeals and we affirm. In 1986 Mr. Rodriguez was sentenced to a term of fi fteen years incarceration by the United States District Court f or the Southern District of Texas for possession of cocaine and bond jumping. In 1988 Mr. Rodriguez walked away from the federal correctional facility at El Reno, Oklahoma, where he had been incarcerated. He remained a fugitive u ntil March, 1992. Following his recapture, he was charged in the United States District Court for the Western District of Oklahoma with escape from a penal insti tution in violation of 18 U.S.C. § 751(a). Mr. Rodriguez pled guilty and was sentenced to a term of twenty-seven months, to run consecutively to his Te xas sentence. Subsequently, the disciplinary hearing officer assigned to Mr. Ro driguez’s Texas case issued a decision rescinding defendant’s parole date. In his section 2255 motion, Mr. Rodriguez challenge s the recision of his parole date as cruel and unusual punishment, and al so invokes the “principles” of the Double Jeopardy Clause, although he explicitly does not claim double jeopardy. 12 We also note that the Parole Commission “has proce dures for reopening

and reconsidering its orders. See 28 C.F.R. § 2.62(k).” Bennett , 83 F.3d at 327. -3- To the extent that Mr. Rodriguez seeks relief forthe parole decision in his Texas case, the district court correctly ruled thatit was without jurisdiction. Section 2255 permits “[a] prisoner in custody undersentence of a court established by Act of Congress . . . [to] move the court which imposed the
sentence to vacate, set aside or correct the sentence.” 28 U.S.C. § 2255 (emphasis added). We also note that section 2255 motions mus t concern the constitutionality of a sentence, the jurisdiction o f the sentencing court, or the length of the sentence. Id. Insofar as Mr. Rodriguez is attacking the parole board’s decision, and not the sentence in the Texas case, section 2255 does not provide a remedy. See United States v. Addonizio , 442 U.S. 178, 187 (1979) (“Whether or not the Parole Commission action in th is case was constitutional, . . . there is no claim that the action taken by the se ntencing judge was unconstitutional, or was based on ‘misinformation o f constitutional magnitude.’”). “Parole Commission . . . release decisions are chal lenged through habeas proceedings in the jurisdiction in which the prison er is incarcerated.” 2 Bennett v. United States Parole Comm’n , 83 F.3d 324, 327 (10th Cir.), cert. denied , No. 95- 9030, 1996 W.L. 282437 (June 17, 1996). We agree w ith the district court that Mr. Rodriguez’s current pleadings cannot be constru ed as a habeas corpus petition-4-

under 28 U.S.C. § 2241 because such a petition mustbe filed in the district in which he is confined. Mr. Rodriguez is apparently presently confined at Fort Worth, Texas. See rec., vol. I, doc. 13. To the extent that Mr. Rodriguez seeks relief for h is Oklahoma sentence, he has failed to set out any deprivation of his rights under the Eighth Amendment or the Double Jeopardy Clause. His sentence was in no way cruel or unusual, and the sentence was imposed as punishment for escape f rom El Reno, not for his original crime of possession of cocaine. AFFIRMED.

ENTERED FOR THE COURT
Stephanie K. Seymour Chief Judge