Mesina v. Wiley , 352 F. App'x 240 ( 2009 )

FILED
United States Court of Appeals
Tenth Circuit
October 16, 2009
UNITED STATES COURT OF APPEALS A. Shumaker
Elisabeth
Clerk of Court
TENTH CIRCUIT
ROMAN C. MESINA,
Petitioner-Appellant,
No. 09-1124
v.
(D.C. No. 1:09-CV-00239-ZLW)
(D. Colo.)
RON WILEY, Warden, Federal Prison
Camp,
Respondent-Appellee.
ORDER AND JUDGMENT *
Before HARTZ, MCKAY, and SEYMOUR, Circuit Judges.
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). This case is
therefore ordered submitted without oral argument.
Mr. Mesina appeals a district court’s denial of his Amended 28 U.S.C. §
*
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, or 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.
2241 petition. His original pro se application for a writ of habeas corpus
challenged a Bureau of Prisons (“BOP”) decision to preclude contact between him
and his brokerage firm and to place him on mail monitoring status. Upon review,
the Magistrate Judge ordered Mr. Mesina to file an amended pleading on the
Court’s Prisoner Complaint form because Mr. Mesina’s claims were not habeas
corpus claims. In addition, the Magistrate Judge ordered Mr. Mesina to pay a
$350.00 civil action filing fee for a civil action, or to file a Motion and Affidavit
for Leave to Proceed in forma pauperis pursuant to 28 U.S.C. § 1915.
On February 27, 2009, Mr. Mesina filed an amended application for writ of
habeas corpus as well as two affidavits in support of his application, a motion for
preliminary injunction or temporary restraining order, and a letter to the court. In
his letter, Mr. Mesina stated that he did not wish to bring a civil action pursuant
to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S.
388 (1971). He asserted instead:
The only thing I would like this Court to do is review the BOP’s
interpretation of 28 C.F.R. § 540.14(d)(4) and BOP Program
Statement 5265.11 (July 9, 1999, at 11), and see if the BOP’s
decision to place me on punitive institutional mail monitoring . . .
and prevent me from contacting any bank is . . . not in accordance
with law pursuant to the Administrative Procedures Act.
Rec. vol. I, at 62 (Order of Dismissal, citing Letter to the Court from Applicant
Roman C. Mesina filed Feb. 27, 2009).
The district court denied the petition, concluding that because § 2241 is
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limited to challenges to the execution of a sentence and Mr. Mesina’s claim
offered no such challenge, Mr. Mesina asserted no recognizable habeas corpus
claim. The court then dismissed Mr. Mesina’s action on the basis that he failed to
file the proper Prisoner Complaint. This appeal followed.
“In reviewing a denial of a petition for habeas corpus, we review the
district court’s conclusions of law de novo and accept its findings of fact unless
they are clearly erroneous.” Hickman v. Spears, 160 F.3d 1269, 1271 (10th Cir.
1998); see also Ruggiano v. Reish, 307 F.3d 121, 126 (3d Cir. 2002) (applying
same standard of review to § 2241 petition involving good time credit issue).
Liberally construing Mr. Mesina’s pro se pleadings, see Haines v. Kerner,
404 U.S. 519, 520-21 (1972), we conclude that Mr. Mesina’s § 2241 petition does
not state a habeas claim, but rather asserts claims under Bivens. As Mr. Mesina
concedes, “the only thing [he] would like th[e] Court to do is review . . . the
BOP’s decision to place [him] on punitive institutional mail monitoring.” Rec.
vol. I, at 62 (Order of Dismissal, citing Mr. Mesina’s Letter). As we have
observed, “[P]risoners who want to challenge their convictions, sentences or
administrative actions which revoke good-time credits, or who want to invoke
other sentence-shortening procedures, must petition for a writ of habeas corpus,”
however, those “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
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proceed under Section 1983 or Bivens.” Boyce v. Ashcroft, 251 F.3d 911, 914
(10th Cir. 2001) (citation omitted) (emphasis added), vacated on other grounds on
reh’g by Boyce v. Ashcroft, 268 F.3d 953 (10th Cir. 2001). Section 2241 is
inapplicable where “a favorable resolution of the action would not automatically
entitle the prisoner to release.” McIntosh v. United States Parole Comm’n, 115
F.3d 809, 812 (10th Cir. 1997) (citing Orellana v. Kyle, 65 F.3d 29, 31 (5th Cir.
1995) (per curiam)). Accordingly, the district court’s denial of Mr. Mesina’s §
2241 petition was proper.
We AFFIRM the district court’s decision denying Mr. Mesina § 2241 relief
and DENY his motion to proceed in forma pauperis.
ENTERED FOR THE COURT
Stephanie K. Seymour
Circuit Judge
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