UNITED STATES of America, Plaintiff-Appellee, v. Scotty ROACH, Defendant-Appellant, 42 F. App'x 640

OPINION PER CURIAM: Scotty Roach appeals the district court’s order that denied his motion for “a new amended judgment order, or a stay of payment of restitution, or remand for re-sentencing” in which he asserted the district court’s restitution order improperly delegated its responsibility for establishing a payment

schedule under United States v. Miller, 77 F.3d 71 (4th Cir.1996). Roach’s motion only challenges the execution of the restitution portion of his sentence. Because he does not seek to be released from custody, we construe his motion as a petition for habeas corpus relief arising under 28 U.S.C.A. § 2241 (2000). See Blaik v. United States, 161 F.3d 1341, 1343 (11th Cir.1998) (“[Section] 2255 cannot be utilized by a federal prisoner who challenges only the restitution portion of his sentence.”); cf. United States v.

Miller, 871 F.2d 488, 489-90 (4th Cir.1989) (holding that a claim for jail time credits should be brought under § 2241); United States v. Glass, 317 F.2d 200, 203 (4th Cir.1963) (finding court has discretion to reclassify an improperly labeled pleading); Roberts v. Pegelow, 313 F.2d 548, 550 (4th Cir.1963) (same). A § 2241 petition must be brought in the district in which the petitioner is incarcerated, see In re Jones, 226 F.3d 328, 332 (4th Cir.2000), and Roach is presently incarcerated in Atlanta, Georgia.

Accordingly, we vacate the district court’s order and remand for the district court to determine whether transferring Roach’s § 2241 petition to the proper federal district court would serve the interests of justice, see 28 U.S.C.A. § 1631 (2000), or whether the action is more appropriately dismissed without prejudice to allow Roach to file his action in the appropriate district court. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. VACATED AND REMANDED WITH INSTRUCTIONS.