* Honorable Robin J. Cauthron, District Judge, UnitedStates District

Court for the Western District of Oklahoma, sitting by designation. 

## F I L E D United States Court of Appeals Tenth Circuit 

### JUN 13 1997 

### PATRICK FISHER Clerk PUBLISH UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

MARCUS ALLAN MCINTOSH,

Petitioner-Appellant,

v. UNITED STATES PAROLE COMMISSION,

Respondent-Appellee. No. 96-1221

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

(D.C. No. 96-M-43)

Submitted on the briefs: Marcus Allan McIntosh, pro se. Henry L. Solano, United States Attorney, Charlotte J. Mapes, Assistant United States Attorney, Denver, Colorado, for Respondent-Appellee.
Before BRORBY and KELLY, Circuit Judges, and CAUTHR ON, * District Judge.
BRORBY, Circuit Judge.1 We note that a certificate of appealability under t he Antiterrorism

and Effective Death Penalty Act of 1996, Pub. L. No . 104-132, 110 Stat. 1214 (Apr. 24, 1996), is not required in order to appeal a final order in a proceeding under 28 U.S.C. § 2241. See Bradshaw v. Story , 86 F.3d 164, 165-66 (10th Cir. 1996).

2 After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would notmaterially assist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore ordered submitted without oral ar gument.

3 The district court denied petitioner’s request to p roceed in forma pauperis on appeal, but petitioner renewed his requ est to proceed in forma pauperis on appeal before this court. See Fed. R. App. P. 24. -2- Petitioner Marcus A. McIntosh, a federal inmate pro ceeding pro se, appeals the district court’s dismissal of his petition for writ of habeas corpus brought pursuant to 28 U.S.C. § 2241. 1 He challenges the decision of the United States Parole Commission (USPC) revoking his parole. He a lso seeks to proceed on appeal in forma pauperis. We grant the petition to proceed on appeal in forma pauperis, and we affirm. 2
Application of 28 U.S.C. § 1915 to 28 U.S.C. § 2241 Habeas Corpus Petitioner seeks to prosecute his appeal of the den ial of his § 2241 petition in forma pauperis. 3 We first consider whether the in forma pauperis f iling fee provisions of the Prison Litigation Reform Act of 1 995 (PLRA), Pub. L. No. 104-134, 110 Stat. 1321 (Apr. 26, 1996), apply. Th e PLRA amended 28 U.S.C.-3-

§ 1915 to impose filing fee obligations on a “priso ner” who “brings a civil action or files an appeal in forma pauperis.” 28 U.S.C. § 1915(b)(1). We begin with an analysis of the nature and purpose of § 2241 proceedings. We have previously concluded that 28 U.S.C. § 2254 habeas corpus and 28 U.S.C. § 2255 proceedings, and appeals of those proceeding s, are not “civil actions” for purposes of 28 U.S.C. §§ 1915(a)(2) and (b). See United States v. Simmonds , 111 F.3d 737, 744 (10th Cir. 1997). We identified several reasons for this conclusion. We noted that habeas corpus proceeding s have not consistently been treated as civil actions. Id. at 742. We observed that habeas actions are not t he type of abusive, prison condition litigation that C ongress sought to curtail in enacting the PLRA. Id. at 743. We also noted that applying the PLRA to § 2254 and § 2255 proceedings would be contrary to a long tradition of permitting ready access to habeas by prisoners. Id. The factors identified in Simmonds that led us to conclude § 2254 and § 2255 proceedings are not “civil actions” under th e PLRA apply with equal force to § 2241 proceedings. Habeas corpus review is ava ilable under § 2241 if one is “in custody in violation of the Constitution or law s or treaties of the United States.” 28 U.S.C. § 2241(c)(3). The fundamental purpose of a § 2241 habeas proceeding is the same as that of § 2254 habeas and§ 2255 proceedings: they are “an attack by a person in custody upon the legalityof that custody, and . . . the-4-

traditional function of the writ is to secure relea se from illegal custody.” Preiser v. Rodriguez , 411 U.S. 475, 484 (1973). Because the nature of a § 2241 proceeding is the same as § 2254 and § 2255 proceed ings, we hold, consistent with Simmonds , 111 F.3d at 744, that § 2241 habeas corpus procee dings, and appeals of those proceedings, are not “civil action s” for purposes of §§ 1915(a)(2) and (b). We are aware that the Seventh Circuit has reached adifferent conclusion, indicating its belief that a “proper” petition unde r § 2241 is a civil action subject to 28 U.S.C. §§ 1915(a)(2) and (b). Thurman v. Gramley , 97 F.3d 185, 187 (7th Cir. 1996). In Thurman , a prisoner filed a § 2241 action challenging his conviction. Thurmanruled that the action was a mislabeled § 2255 acti on, but addressed whether 28 U.S.C. §§ 1915(a)(2) and (b) applied to § 2241 proceedings: For the reasons [Martin v. United States , 96 F.3d 853, 855 (7th Cir. 1996)] gave in holding that petitions under §§ 2254 and 2255 are not [“civil actions” for purposes of 28 U.S.C. § 1915], we hold that a petition under § 2241 challenging one’s sentence li kewise is outside [PLRA]. It is functionally a stage in the criminal proceeding; indeed this petition is simply a § 2255 action in the wron g venue. A proper § 2241 action, concerning conditions of confinement , a deprivation of good time credits, or other matters that occur at the prison, by contrast, would not be a continuation of the crimin al case, and it would be subject to [ PLRA]. Thurman , 97 F.3d at 187.-5-

Because the proceeding in Thurmanwas a mislabeled § 2255 action, its statement that a properly filed § 2241 action is a civil action is dicta. We decline to adopt the Thurmananalysis because we disagree with its statement th at a properly filed § 2241 petition can be used to chall enge prison “conditions of confinement.” See id. Petitions under § 2241 are used to attack the exe cution of a sentence, see Bradshaw v. Story , 86 F.3d 164, 166 (10th Cir. 1996), in contrast to § 2254 habeas and § 2255 proceedings, which are used to collaterally attack the validity of a conviction and sentence, see Carnine v. United States , 974 F.2d 924, 927 (7th Cir. 1992) (comparing § 2241 with § 2255). However, although a § 2241 attack on the execution of a sentence may challenge some matters that occur at prison, such as deprivation of good-time credits an d other prison disciplinary matters, see Thurman97 F.3d at 187, this does not make § 2241 actions like “condition of confinement” lawsuits, which are brou ght under civil rights laws. A habeas corpus proceeding “attacks the fact or durat ion of a prisoner’s confinement and seeks the remedy of immediate relea se or a shortened period of confinement. In contrast, a civil rights action . . . attacks the conditions of the prisoner’s confinement and requests monetary compen sation for such conditions.” Rhodes v. Hannigan , 12 F.3d 989, 991 (10th Cir. 1993) (citation omitt ed); see Preiser , 411 U.S. at 499-500 (but reserving the question o f whether challenges to conditions of confinement may be brought under habe as corpus proceedings, or-6-

are restricted to actions brought under civil right s laws); Otey v. Hopkins , 5 F.3d 1125, 1130-32 (8th Cir. 1993) (court lacked jurisdi ction over § 2241 habeas petition because prisoner’s challenge to Board of P ardons’ procedure was not challenge to fact or duration of his custody). Thus, a § 2241 action challenging prison disciplinary proceedings, such as the deprivation of good-time credits, is not challe nging prison conditions , it is challenging an action affecting the fact or duratio n of the petitioner’s custody. Section 2241 actions are not used to challenge pris on conditions such as “insufficient storage locker space . . . and yes, b eing served creamy peanut butter
. . . .” See Simmonds , 111 F.3d at 743 (quoting statement of Sen. Dole d escribing the type of abusive prison condition litigation sou ght to be curtailed by PLRA). For this reason, we do not think it appropriate to analyze whether a § 2241 action is a “civil” or a “criminal” action on a case-by-ca se basis, depending on whether or not it challenges a matter that occurred at the prison, because the essential nature of all § 2241 actions is a challenge to federal custody, which we conclude are not “civil actions” under 28 U.S.C. §§ 1915(a)( 2) and (b). Exempting § 2241 actions from §§ 1915(a)(2) and (b) will not create a loophole for abusive prison condition litigation th ereunder. See Green v. Nottingham , 90 F.3d 415, 418 (10th Cir. 1996) (“[a]llowing pr isoners to continue filing actions as they had before . . . merely by [ reframing pleadings] would allow-7-

a loophole Congress surely did not intend. . . .”). There are logical distinctions between prison condition suits brought under civil rights laws and execution of sentence matters brought under § 2241. See, e.g. , United States v. Furman , 112 F.3d 435, 438-39 (10th Cir. 1997) (challenges to go od-time credit and parole procedure go to execution of sentence and should be brought under § 2241; challenges to conditions of confinement and relatedcivil rights allegations should be brought pursuant to civil rights laws); Orellanav. Kyle , 65 F.3d 29, 31 (5th Cir. 1995) (per curiam) (if a favorable resolution of the action would not automatically entitle the prisoner to release, the proper vehicle is 42 U.S.C. § 1983), cert. denied , 116 S. Ct. 736 (1996); Falcon v. United States Bu reau of Prisons , 52 F.3d 137, 138 (7th Cir. 1995) (if prisoner is seeking “quantum change” in the level of custody, such as freedom, r emedy is habeas corpus; if he is seeking a different program or location or envir onment, then challenge is to conditions, rather than fact, of his confinement an d remedy is under civil rights law); Tucker v. Carlson , 925 F.2d 330, 332 (9th Cir. 1991) (challenges to the fact or duration of prisoner’s confinement should be con strued as a petition for habeas corpus under § 2241; complaint seeking damages for civil rights violations construed as an action under Bivens v. Six Unknown Named Agents , 403 U.S. 388 (1971)).-8-

We further emphasize that we hold only that § 2241 proceedings, and appeals of those proceedings, are not “civil action s” for purposes of 28 U.S.C. §§ 1915(a)(2) and (b). A prisoner seeking to proce ed in forma pauperis with his or her § 2241 petition remains obligated to comply with, and is subject to, all of the other provisions of 28 U.S.C. § 1915. We turn now to petitioner’s request to proceed in f orma pauperis. We have reviewed petitioner’s affidavit and the other mater ials filed in support of his motion, and conclude that he has demonstrated “a fi nancial inability to pay the required fees and the existence of a reasoned, nonf rivolous 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); see Coppedge v. United States , 369 U.S. 438 (1962). Therefore, we grant his request to proceedon appeal in forma pauperis. Parole Revocation Petitioner challenges the decision of the USPC revo king his parole. “We review de novo the district court's decision to deny habeas relief.” Kell v. United States Parole Comm'n , 26 F.3d 1016, 1019 (10th Cir. 1994). “Judicial r eview of a Parole Board's decision . . . is a narrow one, andthe Board’s decision should not be disturbed by the courts unless there is a clear showing of arbitrary and capricious action or an abuse of discretion.” Sot elo v. Hadden , 721 F.2d 700, 702 (10th Cir. 1983).-9-

Petitioner challenges the USPC’s findings that he v iolated his parole by possessing approximately sixteen grams of cocaine w ith the intent to distribute, and associating with persons engaging in criminal b ehavior. The magistrate judge’s recommendation found that the USPC had a rational basis for these findings. See Misasi v. United States Parole Comm'n , 835 F.2d 754, 758 (10th Cir. 1987) (when the USPC’s decision rests on factu al determinations, those determinations will be sustained if they have a rat ional basis in the record). Upon review of the record, we find that the magistr ate judge’s recommendation, as adopted by the district court, is legally correc t and supported by the record. Accordingly, the district court's order is AFFIRMED for substantially the reasons stated in the district court’s order dated April 26 , 1996, adopting the magistrate judge’s eleven-page recommendation dated April 15, 1996.