United States District Court, D. Hawaii
ORDER DISMISSING PETITION AND DENYING CERTIFICATE OF
A. OTAKE UNITED STATES DISTRICT JUDGE.
John Ferdinand Freitas (“Petitioner”) is
incarcerated at the Federal Detention Center
(“FDC”) in Honolulu, Hawai‘i for revocation
of his supervised release. Pet. at 1. He filed the instant
Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C.
§ 2241(c)(3) alleging that his detention and restraint
is unlawful because it deprives him of the following: (1) his
First Amendment right to utilize the protected speech
conduit, the administrative remedy program; (2) his Eighth
Amendment right to be free from cruel and unusual punishment;
(3) his First and Fourteenth Amendment right to access the
courts; (4) his First amendment right to free exercise of
religion. Id. at 1-3. For the reasons articulated
below, the Court DISMISSES the Petition for lack of
jurisdiction and DENIES a certificate of appealability.
federal or state prisoner contends that he “is in
custody in violation of the Constitution or laws or treaties
of the United States, ” § 2241 confers a general
grant of habeas jurisdiction. 28 U.S.C. § 2241(a) and
(c)(3). A district court considering an application for a
writ of habeas corpus shall “award the writ or issue an
order directing the respondent to show cause why the writ
should not be granted, unless it appears from the application
that the applicant or person detained is not entitled
thereto.” 28 U.S.C. § 2243.
of the Rules Governing Section 2254 Cases in the United
States District Courts (“Habeas Rules”), also
applicable to § 2241,  requires courts to conduct a
preliminary review of each petition for writ of habeas
corpus. Rule 4. “If it plainly appears from the
petition and any attached exhibits that the petitioner is not
entitled to relief, ” the district court must summarily
dismiss the petition. Id. The district court should
not dismiss a habeas petition “without leave to amend
unless it appears that no tenable claim for relief can be
pleaded were such leave granted.” Jarvis v.
Nelson, 440 F.2d 13, 14 (9th Cir. 1971).
Petitioner is not Entitled to Habeas Relief
law opens two main avenues to relief on complaints related to
imprisonment: a petition for writ of habeas corpus, 28 U.S.C.
§ 2254, and a complaint under . . . 42 U.S.C. §
1983.” Muhammad v. Close, 540 U.S. 749, 750
(2004) (per curiam). Habeas relief extends to a prisoner in
custody under the authority of the United States. 28 U.S.C.
§ 2241. A petitioner challenging the manner, location,
or conditions of the execution of his sentence must file a
petition for writ of habeas corpus under 28 U.S.C. §
2241. See, e.g., United States v. Giddings,
740 F.2d 770, 772 (9th Cir. 1984); Brown v. United
States, 610 F.2d 672, 677 (9th Cir. 1990)
(distinguishing between a § 2255 petition, which tests
the imposed sentence, with a § 2241, which tests the
sentence “as it is being executed”).
“Challenges to the validity of any confinement or to
particulars affecting its duration are the province of habeas
corpus.” Muhammad, 540 U.S. at 750 (citation
omitted); Nettles v. Grounds, 830 F.3d 922, 934 (9th
Cir. 2016) (en banc) (holding that a prisoner's claims
are within the core of habeas corpus if they challenge the
fact or duration of his conviction or sentence).
contrast, claims that challenge conditions of confinement,
and which would not necessarily impact the fact or duration
of confinement do not fall within “the core of habeas
corpus” and must be brought under § 1983.
Nettles, 830 F.3d at 934-35; Muhammad, 540
U.S. at 750 (“[R]equests for relief turning on
circumstances of confinement may be presented in a §
1983 action.”). In the federal context, Bivens v.
Six Unknown Named Agents of Federal Bureau of Narcotics,
403 U.S. 388 (1971), provides a remedy for civil rights
violations by federal actors.
Petitioner has not explained how the execution of
his sentence is violating his civil rights under the
Constitution. He does not challenge the execution, duration,
or legality of his sentence, nor the legality of the
revocation of his supervised release. Rather, his allegations
concern the conditions of his confinement. As earlier noted,
Petitioner asserts that his First, Eighth, and Fourteenth
Amendments are being violated because he has been deprived of
the administrative remedy program, free exercise of religion,
access to the courts, and the FDC has withheld his medication
from him. Such claims are not cognizable pursuant to §
2241. Even if the Court granted leave to amend, it does not
appear that Petitioner could plead a viable claim for habeas
relief. Accordingly, the Petition is DISMISSED.
Recharacterization of the Petition is Inappropriate
appropriate circumstances, courts have the discretion to
convert a habeas petition to a prisoner civil rights
complaint. Wilwording v. Swenson, 404 U.S. 249, 251
(1971), overruled on other grounds by Woodford v.
Ngo, 548 U.S. 81 (2006); Nettles, 830 F.3d at
936 (holding that a district court has the discretion to
construe a habeas petition as a civil rights action under
§ 1983). However, recharacterization is appropriate only
if the petition is “amenable to conversion on its face,
meaning that it names the correct defendants and seeks the
correct relief, ” and only after the petitioner is
warned of the consequences of conversion and is provided an
opportunity to withdraw or amend the petition.
Nettles, 830 F.3d at 936.
Court finds that recharacterization would be inappropriate in
this case for multiple reasons. First, prisoner civil rights
actions are subject to different requirements than are
federal habeas proceedings, including higher filing fees. The
filing fee for a prisoner civil rights complaint proceeding
in forma pauperis is $350.00 compared to the substantially
lower $5.00 filing fee for habeas petitions. 28 U.S.C. §
1914(a). The $350.00 fee may be deducted in full over time
from a qualified prisoner's prison trust account. 28
U.S.C. § 1915(b)(1). Petitioner may be unwilling to pay
the considerably higher filing fee for a civil rights action.
the Prison Litigation Reform Act (“PLRA”)
provides that “[n]o action shall be brought with
respect to prison conditions under section 1983 of this
title, or any other Federal law, by a prisoner confined in
any jail, prison, or other correctional facility until such
administrative remedies as are available are
exhausted.” 42 U.S.C. § 1997e(a). The exhaustion
requirement applies to all claims relating to prison life
that do not implicate the duration of a prisoner's
sentence. Porter v. Nussle, 534 U.S. 516, 523, 532
(2002) (“[F]ederal prisoners suing under
Bivens  must first exhaust inmate grievance
procedures just as state prisoners must exhaust
administrative processes prior to instituting a § 1983
suit.”). Exhaustion is a prerequisite to bringing a
civil rights action that cannot be excused by a district
court. Woodford, 548 U.S. at 85; Booth v.
Churner, 532 U.S. 731, 739 (2001). Petitioner ...