McIntosh v. U. S. Parole Comm'nMcIntosh v. U. S. Parole Comm'n
Submitted on the briefs:
Henry L. Solano, United States Attorney, Charlotte J. Mapes, Assistant United States Attorney, Denver, Colorado, for Respondent-Appellee.
Before BRORBY and KELLY, Circuit Judges, and CAUTHRON,* District Judge.
BRORBY, Circuit Judge.
Petitioner Marcus A. McIntosh, a federal inmate proceeding pro se, appeals the district court‘s dismissal of his petition for writ of habeas corpus brought pursuant to
Application of 28 U.S.C. § 1915 to 28 U.S.C. § 2241 Habeas Corpus
Petitioner seeks to prosecute his appeal of the denial of his § 2241 petition in forma pauperis.3 We first consider whether
We begin with an analysis of the nature and purpose of § 2241 proceedings. We have previously concluded that
The factors identified in Simmonds that led us to conclude § 2254 and § 2255 proceedings are not “civil actions” under the PLRA apply with equal force to § 2241 proceedings. Habeas corpus review is available under § 2241 if one is “in custody in violation of the Constitution or laws or treaties of the United States.”
We are aware that the Seventh Circuit has reached a different conclusion, indicating its belief that a “proper” petition under § 2241 is a civil action subject to
For the reasons [Martin v. United States, 96 F.3d 853, 855 (7th Cir. 1996)] gave in holding that petitions under §§ 2254 and 2255 are not [“civil actions” for purposes of
28 U.S.C. § 1915 ], we hold that a petition under § 2241 challenging one‘s sentence likewise is outside [PLRA]. It is functionally a stage in the criminal proceeding; indeed this petition is simply a § 2255 action in the wrong venue. A proper § 2241 action, concerning conditions of confinement, a deprivation of good time credits, or other matters that occur at the prison, by contrast, would not be a continuation of the criminal case, and it would be subject to [ PLRA].
Because the proceeding in Thurman was a mislabeled § 2255 action, its statement that a properly filed § 2241 action is a civil action is dicta. We decline to adopt the Thurman analysis because we disagree with its statement that a properly filed § 2241 petition can be used to challenge prison “conditions of confinement.” See id. Petitions under § 2241 are used to attack the execution of a sentence, see Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir. 1996), in contrast to § 2254 habeas and § 2255 proceedings, which are used to collaterally attack the validity of a conviction and sentence, see Carnine v. United States, 974 F.2d 924, 927 (7th Cir. 1992) (comparing § 2241 with § 2255). However, although a § 2241 attack on the execution of a sentence may challenge some matters that occur at prison, such as deprivation of good-time credits and other prison disciplinary matters, see Thurman 97 F.3d at 187, this does not make § 2241 actions like “condition of confinement” lawsuits,
Thus, a § 2241 action challenging prison disciplinary proceedings, such as the deprivation of good-time credits, is not challenging prison conditions, it is challenging an action affecting the fact or duration of the petitioner‘s custody. Section 2241 actions are not used to challenge prison conditions such as “insufficient storage locker space . . . and yes, being served creamy peanut butter . . . .” See Simmonds, 111 F.3d at 743 (quoting statement of Sen. Dole describing the type of abusive prison condition litigation sought to be curtailed by PLRA). For this reason, we do not think it appropriate to analyze whether a § 2241 action is a “civil” or a “criminal” action on a case-by-case basis, depending on whether or not it challenges a matter that occurred at the prison, because the essential nature of all § 2241 actions is a challenge to federal custody, which we conclude are not “civil actions” under
Exempting § 2241 actions from
We further emphasize that we hold only that § 2241 proceedings, and appeals of those proceedings, are not “civil actions” for purposes of
We turn now to petitioner‘s request to proceed in forma pauperis. We have reviewed petitioner‘s affidavit and the other materials filed in support of his motion, and conclude that he has demonstrated “a financial inability to pay the required fees and the existence of a reasoned, nonfrivolous argument on the law and facts in support of the issues raised on appeal.” DeBardeleben v. Quinlan, 937 F.2d 502, 505 (10th Cir. 1991); see Coppedge v. United States, 369 U.S. 438 (1962). Therefore, we grant his request to proceed on appeal in forma pauperis.
Parole Revocation
Petitioner challenges the decision of the USPC revoking his parole. “We review de novo the district court‘s decision to deny habeas relief.” Kell v. United States Parole Comm‘n, 26 F.3d 1016, 1019 (10th Cir. 1994). “Judicial review of a Parole Board‘s decision . . . is a narrow one, and the Board‘s decision should not be disturbed by the courts unless there is a clear showing of arbitrary and capricious action or an abuse of discretion.” Sotelo v. Hadden, 721 F.2d 700, 702 (10th Cir. 1983).
Petitioner challenges the USPC‘s findings that he violated his parole by possessing approximately sixteen grams of cocaine with the intent to distribute, and associating with persons engaging in criminal behavior. The magistrate judge‘s recommendation found that the USPC had a rational basis for these findings. See Misasi v. United States Parole Comm‘n, 835 F.2d 754, 758 (10th Cir. 1987) (when the USPC‘s decision rests on factual determinations, those determinations will be sustained if they have a rational basis in the record). Upon review of the record, we find that the magistrate judge‘s recommendation, as adopted by the district court, is legally correct and supported by the record. Accordingly, the district court‘s order is AFFIRMED for substantially the reasons stated in the district court‘s order dated April 26, 1996, adopting the magistrate judge‘s eleven-page recommendation dated April 15, 1996.