IN RE SMITH, 08-5177 (D.C. Cir. 9-4-2008)
In re: David Lee Smith, Petitioner.
No. 08-5177.United States Court of Appeals, District of Columbia Circuit.
Filed On: September 4, 2008.
[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] BEFORE: Sentelle, Chief Judge, and Henderson and Brown, Circuit Judges.
Per Curiam
ORDER
Upon consideration of the motion for leave to proceed in forma pauperis; and the notice of appeal, which is construed as a petition for writ of mandamus; and the memorandum of law and fact in support thereof, it is
ORDERED that the motion for leave to proceed in forma pauperis be granted. It is
FURTHER ORDERED that the petition for writ of mandamus be denied. Because petitioner was convicted in state court, the proper vehicle for challenging his conviction in federal court is an application for a writ of habeas corpus filed under 28 U.S.C. § 2254, not § 2255, in the district in which petitioner's custodian is located.See 28 U.S.C. §§ 2254, 2255. Accordingly, the district court did not abuse its discretion in transferring this action to the United States District Court for the Eastern District of North Carolina, see In reTripati, 836 F.2d 1406, 1407 (D.C. Cir. 1988) (per curiam), which has jurisdiction over petitioner's custodian.See Rumsfeld v. Padilla, 542 U.S. 426
(2004); Stokes v. United States Parole Commission,374 F.3d 1235 (D.C. Cir. 2004). To the extent petitioner is seeking review of a decision issued by the district court of the Eastern District of North Carolina, or an order directing the Eastern District of North Carolina to vacate his convictions, petitioner suggests no jurisdictional basis for such relief. See Airline Pilots Ass'n Int'l v.Dep't of Transp., 880 F.2d 491, 503 (D.C. Cir. 1989) (court has no authority to issue writ of mandamus to a district court in the Fifth Circuit).
Pursuant to D.C. Circuit Rule 36, this disposition will not be published.