United States District Court, D. Colorado
RECOMMENDATION ON APPLICATION FOR WRIT OF HABEAS
CORPUS PURSUANT TO 28 U.S.C. § 2241
Michael E. Hegarty United States Magistrate Judge.
Brooks James Terrell filed a writ of habeas corpus pursuant
to 28 U.S.C. § 2241, challenging a disciplinary
proceeding that resulted in a loss of fourteen visitation
days. Because Mr. Terrell's challenge does not affect the
validity or length of his confinement, a writ of habeas
corpus is not available. Accordingly, I respectfully
recommend that Mr. Terrell's application be dismissed.
Terrell is a current inmate at the Florence ADMAX
Penitentiary in Florence, Colorado. On March 4, 2017, Mr.
Terrell allegedly refused to take his required medication.
Incident Report 2, ECF No. 15-4. As a result, prison
officials issued an incident report for mis-use of authorized
medication and conducted a disciplinary proceeding.
November 30, 2017, Mr. Terrell filed the present Amended
Application for Writ of Habeas Corpus, ECF No. 6. Mr. Terrell
alleges his due process rights were infringed through the
proceedings that resulted from the medication incident.
Id. at 2. According to Mr. Terrell, Respondent did
not conduct an initial investigation, and the hearing was not
fair and impartial. Id.
Mr. Terrell does not explain any sanctions Respondent
imposed, he claims that the incident is hampering his
“transfer/advancement thr[ough] [prison]
programs.” Id. at 5.
filed a response on March 22, 2018. Resp. to Am. Appl. for
Writ of Habeas Corpus, ECF No. 15. Respondent asserts the
Court lacks jurisdiction over Mr. Terrell's application,
because the disciplinary proceeding did not affect the
duration or legality of Mr. Terrell's confinement.
Id. at 3. Additionally, Respondent contends the
disciplinary proceeding did not infringe Mr. Terrell's
due process rights. Id. at 5-8. Mr. Terrell did not
file a reply brief.
federal court must construe a pro se plaintiff's
“pleadings liberally, applying a less stringent
standard than is applicable to pleadings filed by lawyers.
[The] court, however, will not supply additional factual
allegations to round out a plaintiff's complaint or
construct a legal theory on plaintiff's behalf.”
Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th
Cir. 1997) (quotations and citations omitted). The court
should not be the pro se litigant's advocate. Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
§ 2241 habeas proceeding is generally “an attack
by a person in custody upon the legality of that custody, and
. . . the traditional function of the writ is to secure
release from illegal custody.” McIntosh v. U.S.
Parole Comm'n, 115 F.3d 809, 811 (10th Cir. 1997)
(quoting Preiser v. Rodriguez, 411 U.S. 475, 484
(1973)). “A motion pursuant to § 2241 generally .
. . [includes] such matters as the administration of parole,
computation of a prisoner's sentence by prison officials,
prison disciplinary actions, prison transfers, type of
detention and prison conditions.” Jiminian v.
Nash, 245 F.3d 144, 146 (2d Cir. 2001). “A
petition under 28 U.S.C. § 2241 attacks the execution of
a sentence rather than its validity and must be filed in the
district where the prisoner is confined.” Bradshaw
v. Story, 86 F.3d 164, 166 (10th Cir. 1996).
recommend denying Mr. Terrell's application for a writ of
habeas corpus, because the discipline Mr. Terrell received
did not affect the legality or length of his sentence. Mr.
Terrell does not detail the discipline Respondent imposed.
However, the incident report states that Mr. Terrell will
lose fourteen days of visitation. Incident Report 2, ECF No.
15-4. The correctional counselor who conducts disciplinary
hearings at the prison confirmed that the loss of visitation
days is the only discipline Mr. Terrell received as a result
of the incident. Decl. of Leonard Robinson ¶ 16, ECF No.
types of claims cognizable under § 2241 are those in
which an individual seeks either immediate release from, or a
shortened period of, physical imprisonment, i.e.,
placement on parole or in a parole-like custodial setting, or
immediate release from, or a shortened period of, custody
altogether.” Palma-Salazar v. Davis, 677 F.3d
1031, 1037 n.2 (10th Cir. 2012). Conversely,
“[p]risoners who raise constitutional challenges to
other prison decisions-including transfers to administrative
segregation, exclusion from prison programs, or suspension of
privileges, e.g. conditions of confinement, must
proceed under Section 1983 or Bivens.”
Boyce v. Ashcroft, 251 F.3d 911, 914 (10th Cir.
2001), vacated as moot, 268 F.3d 953 (10th Cir.
Mr. Terrell received only a suspension of his
privileges-i.e., less visitation days. Mr. Terrell
does not allege or produce evidence that Respondent imposed
any other discipline that affects the length of his
confinement, such as loss of good time credits. Although Mr.
Terrell states the incident report is “hamper[ing] the
applicant transfer/advancement thru [prison] programs,
” he does not detail the prison programs in which he is
unable to participate or explain how not advancing through
prison programs is affecting the length of his confinement.
Because the incident report and disciplinary hearing deprived
Mr. Terrell only of prison privileges, he must bring his
challenge pursuant to Bivens. See Ricco v.
Conner, 146 Fed.Appx. 249, 253-54 (10th Cir. 2005)
(unpublished) (holding that a § 2241 petition was not
the proper mechanism to challenge disciplinary proceedings
that resulted in denial of a prisoner's visitation
privileges); see ...