1

The Honorable Donovan W. Frank, United States District Judge for the District

of Minnesota, adopting the Report and Recommendation of the Honorable Raymond

L. Erickson, Chief United States Magistrate Judge for the District of Minnesota.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 08-1330

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Donald Ray Nichols, *

*

Appellant, *

* Appeal from the United States

v. * District Court for the

* District of Minnesota.

Jessica Symmes, Acting *

Warden, Oak Park Heights, *

*

Appellee. *

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Submitted: November 11, 2008

Filed: January 21, 2009

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Before WOLLMAN, BEAM, and BENTON, Circuit Judges.

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BEAM, Circuit Judge.

Donald Ray Nichols appeals the district court's1

 denial of his petition for habeas

corpus. We affirm.
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I. BACKGROUND

In 1995, Nichols pleaded guilty to aiding and abetting the murder of an inmate

at a federal penitentiary in Colorado. The terms of his plea agreement provided that

the government would recommend that Nichols serve his entire sentence in a state

prison facility, rather than a federal facility, unless he was moved to the federal

facility for disciplinary reasons. In October 1995, he was sentenced to 420 months'

imprisonment, and began serving his sentence in state prison in Colorado. In

February 1998, shortly before he was to testify at his co-defendant's federal trial, he

was transferred to a federal prison facility in Colorado. After his co-defendant was

acquitted in March 1998, Nichols was transferred to the federal penitentiary in

Florence, Colorado, instead of being returned to the state facility where he began

serving his sentence in 1995.

In April 2000, Nichols unsuccessfully asked the Colorado federal district court

for leave to withdraw his guilty plea, arguing that the government had materially

breached the agreement by housing him at the federal penitentiary. In November

2000, Nichols brought a 28 U.S.C. § 2241 petition for habeas corpus in Colorado

federal court. Nichols asserted that the government breached the plea agreement by

failing to timely bring a Rule 35 motion, that his plea was not knowing and voluntary,

and that he had received ineffective assistance of counsel. The Colorado district court

converted the motion into a § 2255 petition to vacate or correct the sentence and

denied it as untimely with regard to the second and third issues, because the statute of

limitations on those claims expired on April 23, 1997. The district court denied the

breach of plea agreement claim on the merits. The Tenth Circuit affirmed in an

unpublished decision. United States v. Nichols, 18 F. App'x 770 (10th Cir. 2001). 

Although the record is not entirely clear on the issue, at some point, presumably

between 2003 and 2006, Nichols was transferred to a state prison facility in

Minnesota. In October 2006, Nichols filed the current action, again styling it as a 28
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U.S.C. § 2241 petition for habeas corpus attacking the execution of his sentence.

However, rather than actually attacking the execution of his sentence, Nichols again

seeks to withdraw his guilty plea as a result of the government's alleged breach of the

plea agreement by placing him, for a period of time, in the federal prison in Colorado.

The district court construed his petition as one for § 2255 relief because Nichols

sought to withdraw his guilty plea, which necessarily implicated the validity of his

underlying conviction. Accordingly, the district court denied relief, because only the

sentencing court has jurisdiction over a § 2255 petition.

II. DISCUSSION

We review the district court's decision de novo. White v. United States, 308

F.3d 927, 929 (8th Cir. 2002). A claim attacking the validity of a guilty plea, and

therefore the underlying sentence, is properly entertained in a § 2255 petition before

the sentencing court. Hill v. Morrison, 349 F.3d 1089, 1091 (8th Cir. 2003). On the

other hand, a claim attacking the execution of that sentence should be brought in a §

2241 petition in the jurisdiction of incarceration. Id. 

Nichols' primary problem is the relief he is seeking. If he were simply claiming

that the government has wrongly housed him in a federal, as opposed to state, facility,

and he wanted to remedy that wrong by being returned to the state facility, the correct

procedure would have been to bring a § 2241 petition. Peak v. Petrovsky, 734 F.2d

402, 405 n.6 (8th Cir. 1984). Indeed, Nichols cites Peak in support of his claims. In

Peak, the prisoner brought a § 2241 petition, claiming that actions by the government

violated the plea agreement and, as a result, he lost credit toward early parole. We

noted that if the government makes a promise which induces a guilty plea, the

government must fulfill that promise, and that a § 2241 petition is the proper vehicle

for remedying the breach. Id. at 405 & n.6. However, we held that the government

did not actually breach the plea agreement in that case. Id. at 405. 
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We fail to see how Peak helps Nichols' cause. The prisoner in Peak was not

seeking to withdraw his guilty plea. He was seeking specific performance–that the

government keep its promise and not consider dismissed counts for sentencing. Here,

Nichols does not seek specific performance, probably because he has already been

moved to a state facility. See United States v. Van Thournout, 100 F.3d 590, 594 (8th

Cir. 1996) (noting that specific performance is the preferred remedy for the

government's breach of the plea agreement). Thus, if Nichols wants the court to

consider his petition as a § 2241 execution of sentence claim, then the case is moot

because the alleged defect in the execution of the sentence–confinement in a federal

facility–has already been cured. See Miller v. Whitehead, 527 F.3d 752, 756 (8th Cir.

2008) (dismissing § 2241 appeal as moot because inmates had received the requested

relief of placement in a residential re-entry center).

However, we believe the district court correctly parsed the language of Nichols'

petition and construed the claim as one attacking the validity of his guilty plea and

resulting sentence, making it a § 2255 petition. Because Nichols cannot meet the

stringent requirements needed to file a successive § 2255 petition, see 28 U.S.C. §

2255(h), the district court properly refused to transfer the petition to the sentencing

court's jurisdiction. 

We reject Nichols' argument that he was precluded from bringing a timely §

2255 petition because of the lateness of the government's breach. Nichols points out

that he was not moved to the federal facility until 1998, and the one-year statute of

limitations for his claim expired on April 23, 1997. Nichols could have made this

argument to the Colorado federal district court in his initial § 2255 filing. However,

Nichols' Claim 1 in that motion asserted only that the government breached the plea

agreement by failing to timely file a Rule 35 motion. Appellant's Appendix at 101.

The district court rejected that claim on the merits rather than basing its denial on the

statute of limitations. Id. at 114. Nichols did raise the incarceration issue in his

motion to withdraw his guilty plea, id. at 85-91, and the sentencing court considered
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and rejected that issue on the merits as well, id. at 94. "A prisoner cannot raise, in a

§ 2241 motion filed in the district of incarceration, an issue which could or was

actually raised in the § 2255 motion filed in the sentencing district." Hill, 349 F.3d

at 1092. This issue arguably falls into both of those categories–it either actually was

raised in the prior proceeding or it could have been. Accordingly, we are prohibited

from considering Nichols' claims. Id.

III. CONCLUSION

We affirm the judgment of the district court.

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