John S. DeSimone appeals pro se the District Court’s 1 dismissal of his petition for habeas corpus. We affirm.
In 1983 DeSimone was convicted of aiding and abetting a continuing criminal enterprise in violation of 21 U.S.C. § 848 and 21 U.S.C. § 846 and of racketeering in violation of 18 U.S.C. § 1962. He was sentenced concurrently to a ten-year term without possibility of parole for the § 848 violation and to ten-year terms for the § 846 and racketeering violations. On appeal, the Court of Appeals for the Seventh Circuit held that the conviction under 21 U.S.C. § 846 was for a lesser included offense under 21 U.S.C. § 848, and the Court vacated the § 846 conviction.
United
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States v. Ambrose,
In May 1985, the Regional Director of the Bureau of Prisons wrote to the United States Attorney for the Northern District of Illinois seeking clarification of an apparent inconsistency between the sentencing provision of § 848, which provided for a minimum ten-year sentence without parole, and the resentencing Order, which provided for parole eligibility. The sentencing judge 2 responded to the inquiry by referring to the Court of Appeals opinion, which had directed him to indicate which of the defendants were eligible for parole. DeSi-mone’s sentence subsequently was recomputed to reflect his parole eligibility, but DeSimone was not informed of the correction.
DeSimone filed a motion in the District Court in Minnesota under 28 U.S.C. § 2241 attacking, inter alia, the prison authorities’ failure to recognize his parole eligibility. The District Court found the issue moot because the records had been corrected to reflect the sentencing change. The District Court then held that the remaining grounds of DeSimone’s petition should have been asserted in a post-conviction motion under 28 U.S.C. § 2255, and accordingly should have been filed in the court imposing the sentence. On appeal, DeSimone challenges the latter holding.
DeSimone attacks the legality of his underlying convictions and the constitutionality of the sentences imposed by the trial court. He submits that his convictions amounted to double jeopardy because the same evidence was used to prove each count; that his appellate counsel’s failure to preserve objections to amended jury instructions demonstrated ineffective assistance of counsel; and that because there is no explicit penalty provision for aiding and abetting a violation of 21 U.S.C. § 848, his detention under that conviction is unconstitutional. None of these claims concerns the execution of his sentence. Rather, they all concern the validity of his underlying conviction and the authority by which he is detained.
Generally, only matters concerning the conditions of confinement or the execution of a sentence are within the subject matter jurisdiction of the court presiding in the district in which a prisoner is incarcerated.
See Lee v. United States,
In bringing a § 2255 petition in the district of incarceration, the petitioner has the burden of demonstrating that § 2255 relief in the sentencing court would be unavailable or ineffective.
Von Ludwitz v. Ralston,
AFFIRMED.