Unpublished Disposition, 886 F.2d 334 (9th Cir. 1988)

MEMORANDUM^** 

Schlomann has appealed from an order of the district court dismissing with prejudice his Sec. 2255 petition, but without prejudice to the filing of such a petition in an appropriate court. We affirm the judgment for the reasons given by the magistrate in his Findings and Recommendations of March 24, 1988 and the order of the district court of May 19, 1988.

Schlomann was convicted in 1964 in court martial proceedings at Fort Richardson, Alaska. He has since been incarcerated in several institutions outside of Alaska and at the time of filing the petition herein, he was incarcerated in a military facility in Minnesota. Neither Schlomann nor his custodian was within the District of Alaska. The district judge noted that the petitioner's motion, the files and records of the case, conclusively showed that Schlomann was entitled to no relief. The judge's order recited:

He has not set forth facts to show that the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or otherwise open to collateral attack, or that there was such a denial of or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack.

The district court also dismissed the petition for lack of jurisdiction. 28 U.S.C. § 2255 explicitly states that the movant must "move the court which imposed the sentence." Since Schlomann's sentence was imposed by a military court, rather than the District Court of Alaska, the District Court of Alaska lacked jurisdiction under section 2255. Military courts are courts "established by Act of Congress" under section 2255. See 10 U.S.C. § 816.

AFFIRMED. No petition for rehearing will be entertained.