* The case is unanimously ordered submitted without oral argument pursuant to

Fed. R. App. P. 34(a) and 10th Cir. R. 34.1.9. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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 

### MAY 14 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT
UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DAVID LAWRENCE WILSON, Defendant - Appellant. No. 97-4196 (D.C. No. 97-CV-234-G) (District of Utah)

ORDER AND JUDGMENT *
Before ANDERSON , MCKAY and LUCERO , Circuit Judges.
David Lawrence Wilson filed a pro se petition for w rit of habeas corpus pursuant to 28 U.S.C. § 2255 in the United States D istrict Court for the District of Utah alleging (1) that his present sentence has bee n improperly calculated by the Bureau of Prisons and (2) that this sentence was improperly enhanced by two earlier, unconstitutional convictions. The distric t court, adopting the magistrate judge’s Report and Recommendation, dismissed the pe tition for lack of- 2 -

jurisdiction. Because the petitioner has made a su bstantial showing of the denial of a constitutional right, we grant a certificate o f appealability. See 28 U.S.C. § 2253(c)(2). Petitioner pleaded guilty to a single count of atte mpted bank robbery in violation of 18 U.S.C. § 2113(a) and was sentenced to a 151-month term of imprisonment. See United States v. Wilson , 10 F.3d 734, 735 (10th Cir. 1993). Petitioner’s first claim is that the Bureau of Pris ons has failed to credit him for 585 days spent in federal custody prior to this conviction. Because this is an attack on the execution of the sentence rather than its validity, § 2255 relief is unavailable. See United States v. Scott , 803 F.2d 1095, 1096 (10th Cir. 1986); see also Bradshaw v. Story , 86 F.3d 164, 166 (10th Cir. 1996). Petitioner’s claim would be properly addressed in a § 2241 habeas peti tion filed in the district where he is confined. Scott , 803 F.2d at 1096. This claim was therefore corre ctly dismissed without prejudice for lack of jurisdictio n. Petitioner also claims that his present sentence wa s improperly enhanced by prior, unconstitutional convictions in Florida and California. The district court dismissed this challenge for lack of jurisdiction, interpreting the petition as an improper collateral attack on the Florida and Calif ornia convictions. As petitioner correctly notes, however, although a def endant may not challenge a fully-expired conviction in isolation, if the attac k is directed at the sentence under- 3 -

which the defendant is in custody, “the defendant m ay argue that his present sentence is improper because it has been enhanced b y a prior, unconstitutional conviction.” Gamble v. Parsons , 898 F.2d 117, 118 (10th Cir. 1990); see also Collins v. Hesse , 957 F.2d 746 (10th Cir. 1992). Construed with th e deference to which pro se litigants are entitled, appellant’s habeas petition should be read “as asserting a challenge to his present sentence to th e extent that it has been enhanced by the allegedly invalid prior conviction[s].” Gamble , 898 F.2d at 118. The district court improperly dismissed the petitio n for lack of jurisdiction as to this claim. We REVERSE the district court’s dismissal of appell ant’s petition for habeas corpus and REMAND for further proceedings co nsistent with this order and judgment. The mandate shall issue forthwith. ENTERED FOR THE COURT

Carlos F. Lucero Circuit Judge