UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ GREGORY D. CROSBY, a/k/a Gregory D. Cosby, Petitioner - Appellant,

v. WARDEN ADMAX, Respondent - Appellee. No. 21-1437 (D.C. No. 1:21- CV-01525-WJM) (D. Colo.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before MATHESON , KELLY , and ROSSMAN , Circuit Judges.

________________ _________________

* After examining the briefs and appella te record, this pa nel has determined unanimously that oral argument would not ma terially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore submitted without oral argument. This or der and judgment is not binding precedent, except under the doctrines of la w of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### March 31, 2022 Christopher M. Wolpert Clerk of Court Appellate Case: 21-1437 Document: 010110665202 Date Filed: 03/31/2022 Page: 12 Gregory D. Crosby, a federal prisoner proceeding pro se, 1 appeals the district court’s denial of his petition for a writ of hab eas corpus under 28 U.S.C. § 2241. 2 He also seeks leave to proceed in forma pauperis (“ ifp ”). Exercising jurisdic tion under 28 U.S.C. § 1291, we affirm. We de ny his motion to proceed ifp

. I. BACKGROUND
A. Legal Background 28 U.S.C. § 2241 A prisoner may petition for ha beas corpus if he or she is “in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241(c)(3). “The fundamental purpose of a § 2241 habeas proceeding is to allow a person in custody to attack th e legality of that custody.” Palma-Salazar v. Davis , 677 F.3d 1031, 1035 (10th Cir. 2012). By contrast, “a prisoner who challenges the conditions of his confinement must do so through a civil rights action.” Id. “[A] request by a federal prisoner for a change in the place of confinement is properly construed as a challenge to the conditions of confinement and, thus, must be brought pursuant to Bivens v. Six Unknown Named Age nts of the Federal Bureau of

1 Because Mr. Crosby is pro se, we constr ue his filings liberally, but we do not act as his advocate. Yang v. Archuleta , 525 F.3d 925, 927 n.1 (1 0th Cir. 2008). He is subject to the same procedural rules governing other litigants. See United States v. Green , 886 F.3d 1300, 1307 (10th Cir. 2018).

2 A federal prisoner is not re quired to obtain a certificate of appealability to seek review of a district court's de nial of a habeas application under § 2241. Eldridge v. Berkebile , 791 F.3d 1239, 1241 (10th Cir. 2015). Appellate Case: 21-1437 Document: 010110665202 Date Filed: 03/31/2022 Page: 23 Narcotics , 403 U.S. 388 (1971).” United States v. Garcia , 470 F.3d 1001, 1003 (10th Cir. 2006). The First Step Act Under the First Step Act, the Bureau of Prisons (“BOP”) was required to develop a risk-and-needs-assessment system for federal prisoners by July 2019. 18 U.S.C. § 3632(a). Afte r developing the system, th e BOP had until January 15, 2020 to complete each prisoner’s indivi dual assessment and a nother two years to provide each prisoner with the programming. Id. § 3621(h)(1)-(2). This system determines in part the type and am ount of evidence-based recidivism reduction (“EBRR”) prog ramming each prisoner requires. Id. § 3632(d). A prisoner who successfully participat es in the EBRR pr ograms “shall be considered . . . for placement in a facility closer to th e prisoner’s release residence upon request from the prisoner.” Id. § 3632(d)(2). But the BO P must consider “bed availability at the transfer facility,” “the prisoner’s secu rity designation,” and “the recommendation from the warden of the prison at which the prison er is incarcerated.” Id. § 3632(d)(2)(A)-(C). And “[n]otwithsta nding any other provision of law, a designation of a place of imprisonment . . . is not reviewable by any court.” Id. § 3621(b).
B. Procedural Background Mr. Crosby is serving a 262-month senten ce at the United Stat es Penitentiary ADX Florence. He has previously filed 17 appeals before us, three of which are related to this appeal. Appellate Case: 21-1437 Document: 010110665202 Date Filed: 03/31/2022 Page: 34 In Crosby v. True ( Crosby I ), 826 F. App’x 699 (10th Cir. Sept. 10, 2020) (unpublished), he filed a § 2241 petition se eking (1) to participate in the EBRR programs and to receive time credits for his completion of the programs and (2) a transfer to a federal pe nitentiary closer to hi s release residence. Id. at 700. We declined to review his EBRR request becau se the district court determined Mr. Crosby was eligible for the EBRR programs and had failed to id entify any district
court error. Id. at 701. As to his transfer claim, we held the court did not err in declining to convert his habeas petition into a Bivens action. Id. at 700-01.
In Crosby v. True ( Crosby II ), 824 F. App’x 595 (10t h Cir. Oct. 5, 2020) (unpublished), Mr. Crosby again filed a § 2241 petition de manding EBRR programs credits and seeking transfer to a federal penitentiary nearer to his release residence. Id. at 595-96. We affirmed the district court’s dismissal of his transfer claim for the reasons stated in Crosby I

. Id. at 596. We remanded his EBRR claim because the district court had not addressed it. Id. On remand, the district court held Mr. Crosby did not adequately assert a claim based on time credits for EBRR programs a nd that it would be futile to grant him leave to amend. He appealed, and we affirmed. See Crosby v. True ( Crosby III ), 2021 WL 5647770, at *1-3 (10th Cir. Dec. 1, 2021) (unpublished). In this case, Mr. Crosby again petitione d for § 2241 relief. He sought (1) credit for participation in EBRR programs and (2) a transfer to a f acility nearer to his release residence. The district court held Mr. Crosby’s EBRR claim was not ripe because the BOP had until January 15, 2022, to phase in the EBRR programs. It also Appellate Case: 21-1437 Document: 010110665202 Date Filed: 03/31/2022 Page: 45 held his transfer claim was ne ither (1) subject to judicial review under the First Step Act nor (2) a valid habeas claim. Mr. Crosby timely appealed.
II. DISCUSSION Mr. Crosby concedes his § 2241 petit ion challenges his conditions of confinement and not the legality of his cu stody. He nonetheless argues the district court erred when it declined to sua sponte convert his § 2241 petition into a Bivens action. Because he did not raise this i ssue below, we review for plain error and affirm. See Richison v. Ernest Grp., Inc. , 634 F.3d 1123, 1128 (10t h Cir. 2011) (“To show plain error, a party must establish the presence of (1) error, (2) that is plain, which (3) affects substantia l rights, and which (4) seri ously affects the fairness, integrity, or public reputation of judicial proceedings.”). As we explained in Crosby I , “[a]lthough a district c ourt may have discretion to convert a pro se prisoner’s claim, nothing in this court’ s prior rulings indicates that failure to do so is e rror.” 826 F. App’x at 700. 3 Indeed, we have previously directed district courts to dismiss, without prejudice, challenges to the place of confinement brought under § 2241. See, e.g. , Palma-Salazar , 677 F.3d at 1039. The district court

3 Although not precedential, we find th e reasoning of this unpublished opinion instructive. See 10th Cir. R. 32.1 (“U npublished decisions ar e not precedential, but may be cited for their persuasive value.”); see also Fed. R. App. P. 32.1. Appellate Case: 21-1437 Document: 010110665202 Date Filed: 03/31/2022 Page: 56 therefore did not err, let alone plainly er r, in declining to sua sponte convert Mr. Crosby’s § 2241 motion into a civil rights claim. 4 Mr. Crosby also moved to proceed ifp . To proceed ifp , he “must show a financial inability to pay th e required filing fees and th e existence of a reasoned, nonfrivolous argument on the law and facts in support of the issues raised on appeal.” DeBardeleben v. Quinlan , 937 F.2d 502, 505 (10th Cir. 1991). Because Mr. Crosby has failed to present a nonfrivolous argumen t on the law and the facts, we deny his motion to proceed ifp

. III. CONCLUSION We affirm.

Entered for the Court
Scott M. Matheson, Jr. Circuit Judge

4 To the extent Mr. Crosby argues on a ppeal that he should have received EBRR time credits he could use to request a transfer, he again fails to provide any specific allegations rega rding this claim. See Crosby I , 826 F. App’x at 701; Crosby III , 2021 WL 5647770, at *2. “[W]e will not conjure facts [Mr. Crosby] might conceivably raise in support of his claims,” so we affi rm the district court. Requena v. Roberts , 893 F.3d 1195, 1205 (10th Cir. 2018). Appellate Case: 21-1437 Document: 010110665202 Date Filed: 03/31/2022 Page: 6