United States District Court, D. Hawaii
MICHAEL F. SCHULZE, Petitioner,
FEDERAL BUREAU OF PRISONS, Respondent.
ORDER DISMISSING PETITION AND DENYING CERTIFICATE OF
A. OTAKE, UNITED STATES DISTRICT JUDGE
Michael F. Schulze (“Petitioner”) is incarcerated
at the Federal Detention Center (“FDC”) in
Honolulu, Hawai‘i. He filed the instant Petition for
Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241,
asserting four grounds for relief: (1) Respondent Federal
Bureau of Prison's (“BOP”) interpretation of
the term “imprisonment” under 18 U.S.C. §
3621(b) violates the Administrative Procedures Act
(“APA”), 5 U.S.C. § 706; (2) the BOP
violated Petitioner's Fifth Amendment procedural and
substantive due process rights by transferring him to a
minimum security prison camp to FDC, an administrative
security facility, for the sole purpose of increasing its
budget; (3) the BOP acted contrary to § 3621(b) and
violated his liberty interest by transferring him without
ascertaining his preference; and (4) 28 C.F.R. §
542.15(b)(1) violates § 706(2)(A) because it obstructs
First Amendment access to the courts. Pet. at 7-8. Petitioner
also filed an Emergency Motion for Preliminary
Injunction. ECF No. 2. 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. See 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).
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.
See 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. See
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.
crux of Petitioner's arguments is that his transfer to
FDC violated his Constitutional rights and the APA.
authorizes judicial review for an individual “suffering
legal wrong because of agency action, or adversely affected
or aggrieved by agency action within the meaning of a
relevant statute, ” 5 U.S.C. § 702, unless
“(1) statutes preclude judicial review; or (2) agency
action is committed to agency discretion by law.” 5
U.S.C. § 701(a); see Reeb v. Thomas, 636 F.3d
1224, 1226 (9th Cir. 2011). Section 3621 of Title 18 of the
U.S. Code authorizes the BOP to “designate the place of
the prisoner's imprisonment.” 18 U.S.C. §
3621(b). Indeed, the BOP “may at any time . . . direct
the transfer of a prisoner from one penal or correctional
facility to another.” Id. And
“[notwithstanding any other provision of law, a
designation of a place of imprisonment under [§ 3621(b)]
is not reviewable by any court.” Id.
3625 of Title 18 of the U.S. Code, titled
“Inapplicability of the Administrative Procedures Act,
” plainly “specifies that the judicial review
provisions of the APA, 5 U.S.C. §§ 701-706, do not
apply to ‘any determination, decision, or order'
made pursuant to 18 U.S.C. §§ 3621-3624.”
Reeb, 636 F.3d at 1227. As explained above, §
3621(b) vests the BOP with the authority to determine where a
prisoner will serve his imprisonment. Allowing prisoners to
file habeas petitions under § 2241 to challenge the
BOP's discretionary determinations pursuant to §
3621 would contravene § 3625. See Id. Because
the BOP's substantive decisions regarding a
prisoner's place of imprisonment are not reviewable,
“federal courts lack jurisdiction to review the
BOP's . . . determinations made pursuant to 18 U.S.C.
§ 3621.” Id. at 1227-28. The Court
accordingly lacks jurisdiction to review the BOP's
decision to transfer Petitioner to FDC. Thus, the Petition is
DISMISSED to the extent it seeks judicial review of the
BOP's decision to transfer him to FDC.
also alleges that the BOP violated his Fifth Amendment
substantive and procedural due process rights by transferring
him to FDC, and that § 542.15(b)(1) violates the APA
by interfering with First Amendment access to the courts.
However, Petitioner has not explained how the
execution of his sentence is violating his civil
rights under the Constitution, nor does he challenge the
execution, duration, or legality of his sentence. Rather, his
allegations concern the conditions of his confinement, which
are not cognizable pursuant to § 2241. See Ramirez
v. Galaza,334 F.3d 850, 859 (9th Cir. 2003)
(“[H]abeas jurisdiction is absent . . . where a
successful challenge to a prison condition will not
necessarily shorten the prisoner's sentence.”).
Even if the Court granted leave to amend the ...