United States v. Miller

MEMORANDUM **

John E. Miller, a federal prisoner, appeals the district court’s denial of his pro se “motion for temporary restraining order” requesting that the Bureau of Prisons (“BOP”) be enjoined from collecting the restitution he owes out of his prison earnings. We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253(a). Reviewing de novo, Bowen v. Hood, 202 F.3d 1211, 1218 (9th Cir.2000), cert, denied, 531 U.S. 1111 , 121 S.Ct. 854 , 148 L.Ed.2d 769 (2001), we affirm.

Because Miller challenges the execution of his sentence and seeks relief against prison officials, his action must be brought as a habeas petition pursuant to 28 U.S.C. § 2241 and, notwithstanding his request to the contrary, we construe it as such. See Tucker v. Carlson, 925 F.2d 330, 331 (9th Cir.1990) (stating that a challenge to the execution of a sentence is “maintainable only in a petition for habeas corpus filed pursuant to 28 U.S.C. § 2241”); Montano-Figueroa v. Crabtree, 162 F.3d 548, 549 (9th Cir.1998) (per curiam) (allowing a federal prisoner to use § 2241 to challenge the BOP’s restitution policies).

The district court lacked jurisdiction to consider Miller’s claims because it is located in…