F I L E D
United States Court of Appeals
Tenth Circuit
AUG 9 2001
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT PATRICK FISHER
Clerk
HERIBERTO HUERTA,
Petitioner - Appellant, No. 00-1255
v. (D. Colorado)
KATHLEEN HAWK-SAWYER, (D.C. No. 99-Z-32)
Director, United States Bureau of
Prisons; JOHN M. HURLEY, Warden,
United States Penitentiary,
Administrative Maximum Facility,
Florence, Colorado,
Respondents - Appellees.
ORDER AND JUDGMENT *
Before HENRY , BRISCOE , and MURPHY , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
this appeal. See Fed. R. App. P. 34 (a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
Heriberto Huerta appeals the district court’s dismissal of his Petition for
Writ of Habeas Corpus, which he brought pursuant to 28 U.S.C. § 2241. Mr.
Huerta is serving a life sentence for conspiracy and distribution of controlled
substances, and is presently being held in administrative segregation at the
maximum security prison in Florence, Colorado. Because we conclude that §
2241 is the improper vehicle for Mr. Huerta’s grievances, we affirm the district
court.
Mr. Huerta’s § 2241 action argues that both his transfer to Florence and his
segregated confinement were unconstitutional. In dismissing the action, the
district court ruled that it amounted to a challenge to the conditions of Mr.
Huerta’s confinement, rather than the execution of his sentence. It stated that
although Mr. Huerta contended “that it is not the denial of . . . privileges, but the
[allegedly unconstitutional] manner in which they were denied” for which he was
seeking relief, “it is apparent that the granting of his petition would simply alter
the current conditions of his confinement and have no effect on his sentence.”
Dist. Ct. Order, filed May 10, 2000 [hereinafter referred to as “Dist. Ct. Order”]
at 2. Citing McIntosh v. United States Parole Comm’n , 115 F.3d 809, 811 (10th
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Cir. 1997), the court ruled that “it is clear that this type of relief may not be
granted through a § 2241 petition.” Dist. Ct. Order at 2.
On appeal, Mr. Huerta maintains that “[c]learly habeas corpus relief is
available for attacking constitutional questions of how a sentence is being
served.” Aplt’s Br. at 24. In support of this proposition, he cites In Re: Medley ,
134 U.S. 160 (1890), and Hutto v. Finney , 437 U.S. 678 (1978). Neither case is
persuasive on this point . Hutto does suggest that conditions of confinement may
be unconstitutional, but it was based on a 42 U.S.C. § 1983 civil rights action,
and makes no mention of habeas petitions. As for Medley , Mr. Huerta cites no
particular language within that century-old case. This may be because the Medley
Court made only one statement that seems relevant to Mr. Huerta’s argument, and
that statement tells us that “under the writ of habeas corpus we cannot do
anything else than discharge the prisoner from the wrongful confinement in the
penitentiary under the statute of Colorado invalid as to this case.” Medley , 134
U.S. at 173.
It is true that a § 2241 action may sometimes “challenge some matters that
occur at prison, such as deprivation of good-time credits and other prison
disciplinary matters.” McIntosh , 115 F.3d at 811. It is also true that in Preiser v.
Rodriguez , 411 U.S. 475, 484 (1973), the Supreme Court reserved judgment on
the question of whether challenges to prison conditions may be brought under §
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2241. However, this circuit has declared that § 2241 is to be used in cases
challenging the fact or duration of federal custody, and not in cases merely
challenging prison conditions. See McIntosh , 115 F.3d at 812. Here, Mr.
Huerta’s own habeas petition states that his action is a challenge to the conditions
of his confinement, not the ultimate fact that he is confined. Petition for Writ of
Habeas Corpus at 2. 1
Moreover, Mr. Huerta is serving a life sentence. He has
made no allegation that his action, even if successful, would result in any direct
change in the duration of his confinement.
For the foregoing reasons, we agree with the magistrate judge that the
correct vehicle for Mr. Huerta’s complaint is a civil rights action under Bivens v.
Six Unknown Named Agents of the Federal Bureau of Narcotics , 403 U.S. 388
(1971). Report and Recommendation of United States Magistrate Judge, filed
1
We acknowledge that in Montez v. McKinna, 208 F.3d 862 (10th Cir.
2000), we held that an attack “on where [the petitioner’s] sentence will be served
. . . seems to fit . . . under the rubric of § 2241.” Id. at 865. In a sense, Mr.
Huerta’s cause of action is a challenge to where his sentence will be served, as he
asks for a transfer to a “true general population unit of an approved correctional
facility.” Petition for Writ of Habeas Corpus at 30 (emphasis omitted). But
Montez is distinguishable from this case; in Montez, the petitioner alleged that
the State of Wyoming could not constitutionally confine him in a privately run
prison in Colorado. He did not argue, as Mr. Huerta does, that he was being
treated in an unconstitutional manner in the course of an otherwise lawful
confinement.
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Mar. 16, 2000, at 6. Accordingly, we AFFIRM the district court’s dismissal of
this § 2241 petition.
Entered for the Court,
Robert H. Henry
Circuit Judge
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