* This disposition is not an opinion of the full court and pursuant to I.O.P. 5.7 does not constitute 

binding precedent.

ALD-021 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 14-1797

___________

JOHN CHARLES KENNEY,

Appellant

v.

WARDEN LEWISBURG USP

____________________________________

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. Civil No. 1:13-cv-2743)

District Judge: Honorable Sylvia H. Rambo

____________________________________

Submitted for Possible Summary Action 

Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6

October 30, 2014

Before: RENDELL, CHAGARES and SCIRICA, Circuit Judges

(Opinion filed: November 17, 2014)

_________

O P I N I O N*

_________
2

PER CURIAM:

John Charles Kenney, a federal inmate currently incarcerated at the United States 

Penitentiary in Lewisburg, Pennsylvania (“USP Lewisburg”), appeals from an order of

the United States District Court for the Middle District of Pennsylvania dismissing his

petition for a writ of habeas corpus. Because the appeal presents no substantial question, 

we will summarily affirm the judgment of the District Court. 

In his habeas petition, Kenney challenged the Bureau of Prisons’ March 2013 

decision to transfer him to the Special Management Unit (“SMU”) at USP Lewisburg

from a different federal facility. Kenney argued that his transfer to the SMU violated his 

due process rights, and that he did not meet the criteria for placement in the SMU. He 

further claimed that Program Statement 5217.01, the basis for his placement, was 

promulgated in violation of the Administrative Procedures Act (“APA”), 5 U.S.C. § 553. 

The matter was referred to a Magistrate Judge, who concluded that Kenney’s 

claims were not cognizable in a habeas petition because they did not concern the validity, 

duration, or execution of his conviction and sentence. The Magistrate Judge also noted 

that even if Kenney had raised his allegations in a civil rights action, he would be 

unlikely to prevail.1 He explained that, based on the allegations, Kenney’s placement in 

the SMU did not implicate his due process rights because no liberty interest had been 

triggered by such a transfer. See Sandin v. Conner, 515 U.S. 472, 486 (1995) (holding 

 

1 Such an action would have been brought pursuant to Bivens v. Six Unknown Named 

Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), the analogue for 42 U.S.C.

§1983 for claims against federal defendants.
3

that routine transfers to administrative segregation do not impinge on liberty interests

protected by the due process clause unless the conditions in administrative segregation 

present an atypical and significant hardship in relation to the ordinary incidents of prison 

life).

Kenney filed objections to the Magistrate Judge’s report and recommendation, 

arguing primarily that his due process rights had been violated because he had 

experienced atypical and significant hardship while confined in the SMU. He also 

submitted an affidavit alleging that, since arriving at the SMU, he has been deprived of 

medical treatment from a qualified doctor capable of treating his serious mental 

condition. Thereafter, the District Court directed the defendant to respond to Kenney’s 

habeas petition as well as his objections to the Magistrate Judge’s report and 

recommendation. The defendant filed a response, arguing that Kenney’s petition should 

be dismissed for lack of jurisdiction because, as the magistrate judge determined, his 

claims did not sound in habeas. The defendant further argued that even if § 2241 was the 

proper vehicle for bringing Kenney’s claims, they lacked merit. Overruling Kenney’s 

objections, the District Court adopted the Magistrate Judge’s recommendation and 

dismissed the petition. The District Court agreed that that Kenney’s claims were not

orgnizable in a § 2241 petition.2 After the District Court denied Kenney’s motion for 

reconsideration, he timely appealed.

 

2 The District Court also appeared to agree with the Magistrate Judge’s assessment that 

even if Kenney had presented his allegations in a civil rights action, they did not suggest 

that his placement in the SMU constituted a dramatic departure from the accepted 

standards for conditions of confinement such that due process was implicated.
4

We have jurisdiction under 28 U.S.C. §§ 1291 & 2253(a). We review de novo the 

District Court’s dismissal of the habeas corpus petition on jurisdictional grounds. See

Okereke v. United States, 307 F.3d 117, 119 (3d Cir. 2002). We may summarily affirm a 

judgment of the District Court if the appeal does not raise a substantial question. See 3d

Cir. I.O.P. 10.6; see also Murray v. Bledsoe, 650 F.3d 246, 247 (3d Cir. 2011) (per 

curiam).

The District Court correctly determined that Kenney’s § 2241 petition does not 

challenge the basic fact or duration of his imprisonment, which is the “essence of

habeas.” Preiser v. Rodriguez, 411 U.S. 475, 484, 484 (1973). We have held that

§ 2241 “confers habeas jurisdiction to hear the petition of a federal prisoner who is 

challenging not the validity but the execution of his sentence.” Woodall v. Fed. Bureau 

of Prisons, 432 F.3d 235, 241 (3d Cir. 2005) (citing Coady v. Vaughn, 251 F.3d 480, 485 

(3d Cir. 2001)). While the “precise meaning of ‘execution of the sentence’ is hazy,” id.

at 242, we have defined execution to mean “put into effect” or “carry out,” id. at 243 

(citation omitted). “[T]o challenge the execution of his sentence under § 2241, [an 

inmate] would need to allege that [the Bureau of Prison’s] conduct was somehow 

inconsistent with a command or recommendation in the sentencing judgment.” Cardona 

v. Bledsoe, 681 F.3d 533, 537 (3d Cir. 2012). Kenney has failed to do so here, as he has 

not alleged that his placement in the SMU was inconsistent with any express command or 

recommendation in his sentencing judgment. See id. Accordingly, we agree with the
5

District Court that Kenney’s confinement in the SMU does not give rise to a habeas 

claim.3 

We also discern no abuse of discretion in the District Court’s order denying 

Kenney’s request for reconsideration. See Max’s Seafood Café v. Quinteros, 176 F.3d 

669, 673 (3d Cir. 1999). A motion for reconsideration is a limited vehicle used “to 

correct manifest errors of law or fact or to present newly discovered evidence.” Id. at 677 

(citation and quotation marks omitted). In his motion, Kenney presented the same 

arguments that the District Court had previously rejected; the District Court properly 

refused to allow Kenney to relitigate issues that it had already decided. See Lazaridis v. 

Wehmer, 591 F.3d 666, 669 (3d Cir. 2010). 

Accordingly, we conclude that there is no substantial question presented by this 

appeal, and will thus summarily affirm the District Court’s orders dismissing Kenney’s 

habeas petition and denying his motion for reconsideration.

 

3 Because we affirm the dismissal of Kenney’s § 2241 petition on grounds that the 

District Court lacked jurisdiction to consider it, we need not address whether the 

complaint, even if construed as a civil rights action, failed to state a constitutional claim. 

Although the District Court also opined that Kenney’s allegations failed to state a 

cognizable due process claim, we deem the District Court’s dismissal of Kenney petition 

as one without prejudice to his right to pursue his claims in a civil rights action pursuant 

to Bivens. We express no opinion as to the merits of such an action.