Montero v. Bush

* Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
United States Court of Appeals
Fifth Circuit
F I L E D
September 9, 2004
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 04-40645
Summary Calendar
MANUEL RAUL REYO PENA GARCIA MONTERO,
also known as Reyes Pena,
Petitioner-Appellant,
versus
GEORGE W. BUSH, PRESIDENT OF THE UNITED STATES,
Respondent-Appellee.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:04-CV-120
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Before EMILIO M. GARZA, DeMOSS and CLEMENT, Circuit Judges.
PER CURIAM:*
Manuel Raul Reyo Pena Garcia Montero (Montero), federal
prisoner # 09794-000, appeals from the district court’s dismissal
of his 28 U.S.C. § 2241 petition as frivolous. Specifically, the
district court determined that Montero’s arguments concerning
President Bush’s legitimacy and constitutional authority did not
relate to the manner in which Montero’s sentence was being
carried out or to the determination of its duration.

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No. 04-40645
-2-
Because Montero is not incarcerated in Texas, the district
court lacked jurisdiction to entertain his petition pursuant to
28 U.S.C. § 2241. Lee v. Wetzel, 244 F.3d 370, 373-75 (5th Cir.
2001) (ruling that "the district of incarceration is the only
district that has jurisdiction to entertain a defendant's § 2241
petition"). Accordingly, the judgment of the district court is
VACATED and the case is REMANDED with instructions to DISMISS
Montero’s 28 U.S.C. § 2241 petition without prejudice for lack of
jurisdiction.
VACATED AND REMANDED with instructions.

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