United States District Court, W.D. Oklahoma
REPORT AND RECOMMENDATION
ERWIN, UNITED STATES MAGISTRATE JUDGE
Edwin Woodward, appearing pro se, seeks a writ of
habeas corpus under 28 U.S.C. § 2241. (ECF No. 5).
United States District Judge Timothy DeGiusti referred this
matter to the undersigned magistrate judge for initial
proceedings consistent with 28 U.S.C. §
636(b)(1)(B)-(C). Upon initial review, the Court should
DISMISS the petition, without prejudice.
Court is required to review habeas petitions promptly and to
“summarily dismiss [a] petition without ordering a
responsive pleading, ” Mayle v. Felix, 545
U.S. 644, 656 (2005), “[i]f it plainly appears from the
petition and any attached exhibits that the petitioner is not
entitled to relief in the district court.” See
R. 4, R. Governing § 2254 Cases in U.S. Dist.
November 30, 2017, Mr. Woodward filed a pleading titled:
“Motion for Judgment as a Matter of Law Under U.S.
§ 2241.” (ECF No. 1). The document contained
elements of claims which could have been brought under 28
U.S.C. § 2241, 28 U.S.C. § 2254, and 42 U.S.C.
§ 1983. See ECF No. 1:2-6. Mr. Woodward named a
single respondent, the United States of America, and as forms
of relief, Mr. Woodward requested: (1) immediate release, (2)
a sentence modification, (3) a discharge date, or (4)
re-sentencing under the Truth in Sentencing Act. (ECF No.
upon the type of relief Mr. Woodward sought, the undersigned
construed the pleading as a request seeking a writ of habeas
corpus and ordered Petitioner to either pay the
$5.00 filing fee or submit a motion for leave to file an
application to proceed in forma pauperis. (ECF No.
4). In addition, the undersigned instructed Mr. Woodward that
he had failed to name a proper respondent and that the
petition was not on the proper form. (ECF No. 4:2).
Accordingly, the Court Clerk sent Mr. Woodward the proper
habeas form and instructed him to cure the deficiencies no
later than December 26, 2017. (ECF No. 4:2). In response,
Petitioner submitted a Petition for a Writ of Habeas Corpus
under 28 U.S.C. § 2241 and paid the $5.00 filing fee.
(ECF Nos. 5 & 6).
DISMISSAL OF THE PETITION
current petition, Mr. Woodward states that he is challenging
“[t]he validity of [his] conviction or sentence as
imposed” and as grounds for relief, he alleges: (1) a
violation of his right to access the courts through a denial
of access to a law library and (2) inhumane conditions of
confinement. (ECF No. 5:2, 3, 8). As relief, Mr. Woodward
requests: (1) immediate release, (2) a sentence modification,
(3) a discharge date, or (4) re-sentencing under the Truth in
Sentencing Act. (ECF No. 5:9).
a petition under § 2254 challenges the validity of the
petitioner's conviction and sentence, whereas a §
2241 petition attacks the execution of his sentence.
Montez v. McKinna, 208 F.3d 862, 865 (10th Cir.
2000). In his initial pleading, Mr. Woodward presented
allegations which would have been proper under either §
2254 or § 2241. See supra. But in the instant
petition, the only information Petitioner provides regarding
his sentence is: (1) he is currently serving a state court
sentence that was imposed “4/93” and (2) that
sentence was modified to “life with parole
possibility” on “2/12.” (ECF No. 5:1-2).
Although Petitioner provided very little information, the
Court should construe the petition as having been properly
brought under § 2241 since Petitioner is “seeking
changes to the administration of his sentence.” See
Gonzalez v. Jones, No. 12-CV-0006-CVE-TLW, 2012 WL
314309, at *1 (N.D. Okla. Feb. 1, 2012) (citing
Montez, at 864-65). That being the case, however,
the Court should dismiss the petition because
Petitioner's factual allegations-which challenge the
conditions of his confinement-do not give rise to claims
under § 2241. See McIntosh v.
United States Parole Comm'n, 115 F.3d 809, 811-12
(10th Cir. 1997) (distinguishing between § 2241
actions and conditions of confinement suits);
Gonzalez, at *1-2 (dismissing § 2241 petition
which alleged unconstitutional conditions of confinement and
deliberate indifference for failure to state a claim for
Woodward is advised that while he may bring his claims
concerning the conditions of his confinement in a 42 U.S.C.
§ 1983 complaint, the relief sought in this
action-release from custody, and/or sentence modification-is
not available in a § 1983 action. See Barnes v.
Owens, No. CIV-06-1094-W, 2006 WL 3311512, at *2 (W.D.
Okla. Nov. 14, 2006) (noting that sentence modification is
not an available remedy under 42 U.S.C. § 1983);
Gonzalez, at *1 (stating that “release from
custody, is not available in a § 1983 action”).
Because Petitioner has failed to state a claim under 28
U.S.C. § 2241, the Court should dismiss the petition
(ECF No. 5) without prejudice.
RECOMMENDATION AND NOTICE OF RIGHT TO OBJECT
Court should DISMISS the habeas petition
(ECF No. 5) for failure to state a claim upon which relief
may be granted.
is hereby advised of his right to object to this Report and
Recommendation. See 28 U.S.C. § 636. Any
objection must be filed with the Clerk of the District Court
by January 16, 2018.See 28 U.S.C.
§ 636(b)(1); and Fed.R.Civ.P. 72(b)(2). Failure to make
timely objection to this Report and Recommendation waives the
right to appellate review of both ...