Braswell v. Gallegos ( 2003 )

  •                                                                              F I L E D
                                                                          United States Court of Appeals
                                                                                  Tenth Circuit
                         UNITED STATES COURT OF APPEALS
                                                                                  DEC 2 2003
                                       TENTH CIRCUIT
                                                                             PATRICK FISHER
     v.                                                       No. 03-1349
                                                                (D. Colo.)
     E.J. GALLEGOS, Warden of F.C.I.                     (D. Ct. No. 03-Z-1122)
     Florence; KATHLEEN
     HANKS/SAWYER, Director of the
     B.O.P.; JOHN ASHCROFT, United
     States Attorney General,
                                ORDER AND JUDGMENT *
    Before TACHA, Chief Circuit Judge, PORFILIO, Circuit Judge, and BRORBY,
    Senior Circuit Judge.
          After examining the briefs and appellate record, this panel has determined
    unanimously that oral argument would not materially assist the determination of
    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.
              This order and judgment is not binding precedent except under the doctrines of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.
           Appellant Cyrus D.A. Braswell, federal inmate appearing pro se, appeals
    the denial of his petition for a writ of habeas corpus filed pursuant to 28 U.S.C.
    § 2241. 1 Mr. Braswell also requests leave to proceed in forma pauperis on
    appeal. We grant him leave to proceed in forma pauperis and affirm.
           The United States District Court for the District of Alaska convicted Mr.
    Braswell of “possession of crack cocaine with intent to distribute, maintaining a
    place for drug trafficking, and money laundering.” United States v. Braswell, No.
    2000 WL 335570
     (9th Cir. Mar. 30, 2000). Because Mr. Braswell is
    imprisoned in a federal facility in Colorado, he filed his § 2241 petition with the
    United States District Court for the District of Colorado.
           In his petition, Mr. Braswell claimed the Bureau of Prisons violated his
    constitutional rights when it based his custody and classification level on the fact
    his conviction involved cocaine and marijuana, even though his criminal
    indictment did not specify any type or quantity of drugs. As relief, he asked the
    Colorado federal district court to order the Director of the Bureau of Prisons to
             Because Mr. Braswell is a federal prisoner, a certificate of appealability is not
    required to appeal the district court’s denial of his § 2241 habeas petition. See Montez v.
    208 F.3d 862
    , 867 (10th Cir. 2000).
    file a motion, pursuant to 18 U.S.C. § 3582(c)(1)(A)(i), with the Alaska federal
    district court, asking it to correct the type and quantity of controlled substance
    used to determine his custody and classification level.
          The Colorado federal district court issued an Order and Judgment of
    Dismissal (Order), construing Mr. Braswell’s pro se petition liberally and denying
    his petition. In the Order, the district court stated:
                 The habeas corpus [petition] will be denied because Mr.
          Braswell cites no law that authorizes the Court to grant the relief he
          seeks. Title 18 U.S.C. § 3582(c)(1)(A)(i) provides that, although a
          court generally may not modify a term of imprisonment once it has
          been imposed, upon motion of the Director of the [Bureau of Prisons]
          a court may modify a sentence if the court finds that extraordinary
          and compelling reasons warrant such a reduction.
    The district court further noted that in filing his § 2241 petition, Mr. Braswell
    was “not challenging his sentence, and if he was, he could not do so in this
          The district court also explained that while Mr. Braswell apparently asked
    the Director of the Bureau of Prisons to file a § 3582 motion in the Alaska federal
    district court, the statute did not authorize the Colorado federal district court “to
    review the Director’s failure or refusal to file such a motion.” For these reasons,
    the district court denied Mr. Braswell’s petition and dismissed the action.
          On appeal, Mr. Braswell renews his constitutional due process claim,
    stating his prisoner custody and classification level is inaccurate because neither
    the indictment nor the judgment, submitted to the Bureau of Prisons by the Alaska
    federal district court, defines any particular type or quantity of controlled
    substance. Mr. Braswell suggests the district court erred in denying his petition
    merely “on grounds [h]e didn’t cite case law to support his claim(s),”and because
    it failed to properly review the facts supporting his claim. He points out that the
    official form, used for filing § 2241 habeas actions and provided to him by the
    Colorado federal district court, specifically states, “[y]ou do not need to cite
    specific cases to support your claim(s).”
          We review the district court’s dismissal of a habeas corpus petition de
    novo. See Bradshaw v. Story, 
    86 F.3d 164
    , 166 (10th Cir. 1996). Similarly, we
    review de novo a district court’s determination as to whether it possesses
    jurisdiction to modify a sentence. See United States v. Smartt, 
    129 F.3d 539
    , 540
    (10th Cir. 1997). Because Mr. Braswell is representing himself on appeal, we
    construe his pleadings liberally. See Haines v. Kerner, 
    404 U.S. 519
    , 520-21
    (1972) (per curiam). We may affirm a district court’s decision denying a § 2241
    petition on any grounds supported by the record. See Aguilera v. Kirkpatrick, 
    241 F.3d 1286
    , 1290 (10th Cir. 2001.)
          In understanding the district court’s ruling on Mr. Braswell’s request for
    relief under 18 U.S.C. § 3582, it is helpful to understand the difference between
    § 2241 and § 2255 habeas petitions, and a motion filed under § 3582. “A petition
    [filed] 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, 86 F.3d at 166. On the other hand, “[a] 28 U.S.C. § 2255 petition
    attacks the legality of detention, and must be filed in the district that imposed the
    sentence.” Id. (citations omitted). A motion filed under 18 U.S.C. § 3582(c), is
    neither a direct appeal of a sentence nor a collateral attack under 28 U.S.C.
    § 2255. See United States v. Trujeque, 
    100 F.3d 869
    , 870 (10th Cir. 1996).
    Instead, it is another statutory means, separate from 28 U.S.C. § 2255, for a
    district court to modify a previously imposed sentence. See United States v.
    118 F.3d 707
    , 709 (10th Cir.), cert. denied, 
    522 U.S. 961
    Because a motion filed under § 3582 requests modification of a sentence, it
    follows that such a motion must be filed in the district court which imposed the
          In this case, Mr. Braswell filed his § 2241 petition in the district court
    where he is confined to contest the execution of his sentence based on the
    classification prison officials associated with the Colorado federal prison afforded
    him. But for relief, he sought modification of his sentence, under 18 U.S.C.
    § 3582, in the Colorado federal district court – not the Alaska federal district
    court which imposed his sentence. Although we have jurisdiction to review Mr.
    Braswell’s classification claim, neither the Colorado federal district court nor
    this court possesses the requisite jurisdiction to consider Mr. Braswell’s request
    for modification of his sentence. 2 As the district court indicated, if Mr. Braswell
    desires to have a court review his § 3582(c) request, he must file a § 3582 motion
    in the Alaska federal district court.
           While we do not have jurisdiction to consider Mr. Braswell’s § 3582(c)
    request, we may review Mr. Braswell’s general allegation that his classification
    status, which the Bureau of Prisons based on his conviction for cocaine and
    marijuana, is unconstitutional in violation of the Due Process Clause. In so
    doing, we find his allegation lacks merit.
              The statute on which Mr. Braswell relies, 18 U.S.C. § 3582(c), provides that a
    “court may not modify a term of imprisonment once it has been imposed except in
    [certain] limited circumstances.” See Smartt, 129 F.3d at 540-41. One of those
    circumstances, as set out in § 3582(c)(1)(A)(i), is on motion of the Director of the Bureau
    of Prisons. Id. at 541. In this case, it appears the Director never filed such a motion. For
    the reasons described herein, we lack jurisdiction to consider Mr. Braswell’s request that
    the Colorado federal district court order the Director to file such a motion in the
    appropriate Alaska court, and are unaware of any legal authority allowing this court or
    any court to make such a directive.
          It is well established that prisoners do not have a due process liberty
    interest in their classification while incarcerated. See Moody v. Daggett, 
    429 U.S. 78
    , 88 n. 9 (1976); Wilson v. Budney, 
    976 F.2d 957
     (5th Cir. 1992); Solomon v.
    563 F.2d 339
    , 340, 342 (7th Cir. 1977). As the Supreme Court pointed
    out, the classification of prisoners is a matter Congress delegated to the discretion
    of federal prison officials under 18 U.S.C. § 4081, and such classification
    implicates “no legitimate statutory or constitutional entitlement sufficient to
    invoke due process.” Moody, 429 U.S. at 88 n.9; see also 28 C.F.R. § 50.95(d).
    This circuit has long recognized that prison security classifications are “a
    necessary tool in the management and control of the penal and correctional
    institutions,” and as such, lie “within the sound discretion of the responsible
    administrative agency.” Marchesani v. McCune, 
    531 F.2d 459
    , 461-62 (10th Cir.
    1976). Because Mr. Braswell’s classification does not implicate any liberty
    interest, the district court properly denied his § 2241 petition.
          As to the district court’s statement that “[t]he habeas corpus [petition] will
    be denied because Mr. Braswell cites no law that authorizes the Court to grant the
    relief he seeks,” we find no error. In essence, the district court merely indicated
    that no constitutional, statutory or case law warrants granting Mr. Braswell relief.
          For the reasons stated, we AFFIRM the district court’s Order denying Mr.
    Braswell’s petition and dismissing the action. As previously noted, we grant Mr.
    Braswell’s request for leave to proceed in forma pauperis on appeal pursuant to
    28 U.S.C. § 1915(c). The mandate shall issue forthwith.
                                         Entered by the Court:
                                         WADE BRORBY
                                         United States Circuit Judge