UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ CHRISTOPHER WILLS, Petitioner - Appellant,

v. J.A. BARNHARDT, Warden, Respondent - Appellee. No. 21-1383 (D.C. No. 1:20-CV-01737-DDD) (D. Colo.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before PHILLIPS , McHUGH , and ROSSMAN , Circuit Judges.

________________ _________________ After the Federal Bureau of Prisons (BOP ) denied his request to be transferred to a prison closer to his family, Ch ristopher Wills filed a 28 U.S.C. § 2241 application for a writ of habeas corpus. Th e district court dismissed the application for lack of jurisdiction, a nd Mr. Wills filed this appeal . Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

* After examining the briefs and appella te record, this pa nel has determined unanimously to honor the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 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 This or der and judgment is not binding precedent, except under the doctrines of la w of the case, res judicata, and collateral estoppel.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 

### September 27, 2022 Christopher M. Wolpert Clerk of Court Appellate Case: 21-1383 Document: 010110745151 Date Filed: 09/27/2022 Page: 12 BACKGROUND Mr. Wills is housed at the BOP’s peniten tiary in Florence, Colorado. In 2019 and 2020, he filed administ rative requests unde r the First Step Act, 18 U.S.C. § 3621(b), for a transfer to a facility with in 500 miles of his family in Virginia. 1 The BOP denied his requests. 2 Mr. Wills next filed a § 224 1 habeas application, which argued that the BOP did not give a detailed , reviewable, or valid explanation for the denials and asked the district court to order a transfer to a BOP facility closer to his family “pursuant to the 500 mile law and rule of the First Step Ac t.” R. at 9. The magistrate judge recommended di smissal of the § 2241 application without prejudice for lack of jurisdiction, reasoning that Mr. Wills had challenged the conditions of his confinement which is not a cognizable habeas claim. Mr. Wills submitted an untimely objection to the assignmen t of the magistrate judge to his case, which was accepted for filing. The district court overruled the objection, adopted the recommendation, and dismisse d the application.

1 Section 3621(b) authorizes the BOP to designate the place of imprisonment for a convicted person. In relevant part, it provides that “[t]he [BOP] . . . shall, subject to bed availability, the prisoner’s se curity designation, the pris oner’s programmatic needs, the prisoner’s mental and medical he alth needs, any request made by the prisoner related to faith-based needs, recommendations of the sent encing court, and other security concerns of the [BOP], place the prisoner in a facility as close as practicable to the prisoner’s primary residence, and to the extent practicable , in a facility within 500 driving miles of that residence.”

2 The administrative proceedings were not part of the district court record and thus are not part of the record on appeal . But the record on appeal does show the warden did not dispute that Mr. Wills exhausted his admini strative remedies. See Suppl. R. at 48, 51. Appellate Case: 21-1383 Document: 010110745151 Date Filed: 09/27/2022 Page: 23 In a post-judgment motion, Mr. Wills alleged that he never received a copy of the recommendation itself—only the order of reference to the magistrate judge. The district court reopened the case and allowed him to file objections. He did so, reframing his claim as a challenge to “the particular pr ocess and procedure employed” by the BOP—not the BOP’s “subst antive decision” denying a transfer. Suppl. R. at 61. More specifically, he argued that the BOP violated his due process and equal protection rights by failing to pr operly consider the factors listed in § 3621(b). Noting this change, the ma gistrate judge withdrew his earlier recommendation finding no jurisdiction and i ssued a new one allowing the claim to proceed. The district court dismissed the case for lack of jurisdiction on two grounds. First, it held that Mr. Wills ’s challenge related to the pl ace of his confinement, which constitutes a challenge to the conditions of his confinement. Habeas relief is only appropriate for a prisoner who challenges the fact or duration of his confinement and seeks immediate release or a shortened period of confinemen t. Therefore, Mr. Wills needed to file a ci vil rights action under Bivens v. Six Unknow n Named Agents of Federal Bureau of Narcotics , 403 U.S. 388 (1971). Sec ond, it held that federal courts do not have jurisdiction to review the BOP’s placement decisions because the statute explicitly provides that “‘a designa tion of a place of imprisonment under this subsection is not reviewable by any court.’” R. at 21 (quoting § 3621(b)). Appellate Case: 21-1383 Document: 010110745151 Date Filed: 09/27/2022 Page: 34 Mr. Wills filed this timely appeal. 3 He argues the district court “had jurisdiction to review . . . [t]he BOP’s denial of his tran sfer request without first considering the five (5) factors of § 3621(b).” Ap lt. Opening Br. at 3. He further argues “the BOP violated the statutory provisions and pr ocedures of § 3621 and the First Step Act of 2018, in arbitrarily and categorically denying [his] tr ansfer request.” Aplt. Reply Br. at 9.
ANALYSIS
A. Standard of Review “This court reviews the district court’s disposition of [a] ha beas corpus petition de novo. Factual findings are reviewed for clear error.” Palma-Salazar v. Davis , 677 F.3d 1031, 1035 (10th Cir. 2012) (c itation omitted).
B. Section 2241 is not the a ppropriate means for relief. The district court correctly held that Mr. Wills should have filed a Bivens action instead of a § 2241 application. In Palma-Salazar , we clearly delineated when each type of action is appropriate. “Habeas corpus review is available under § 2241 if an individual is ‘in custody in violation of the Constitution or laws or trea ties of the United States.’” Id. (quoting 28 U.S.C. § 2241(c)(3)). “The fu ndamental purpose of a § 2241 habeas proceeding is to allow a person in custody to attack the lega lity of that custody, and the traditional function of the writ is to secure release from illegal custody.” Id. (internal

3 Because Mr. Wills is proceeding w ithout the assistance of counsel, “we construe his pleadings liberally.” Ledbetter v. City of Topeka , 318 F.3d 1183, 1187 (10th Cir. 2003). But we “cannot take on the responsib ility of serving as [his] attorney in constructing arguments.” Garrett v. Selby Connor Maddux & Janer , 425 F.3d 836, 840 (1 0th Cir. 2005). Appellate Case: 21-1383 Document: 010110745151 Date Filed: 09/27/2022 Page: 45 quotation marks omitted). “[T]he types of cl aims cognizable under § 2241 are those in which an individual seeks either immediate release from, or a shortened period of, physical imprisonment.” Id. at 1037 n.2. By contrast, “[i]n this circ uit, . . . a prisoner who cha llenges the conditions of his confinement must do so through a civil rights action.” Id. at 1035. A challenge to the BOP’s transfer decision is “properly construe d as a challenge to the conditions of . . . confinement and must be brought pursuant to Bivens .” Id. at 1036; see, e.g. , United
States v. Garcia , 470 F.3d 1001, 1002-0 3 (10th Cir. 2006) (motion to compel BOP to transfer federal prisoners to a detention fa cility within 500 miles of their families was properly construed as a challenge to conditi ons of confinement that must be brought under Bivens ); see generally McIntosh v. U.S. Parole Comm’n , 115 F.3d 809, 811-12 (10th Cir. 1997) (“[A]lthough a § 2241 attack on the ex ecution of a sentence may challenge some matters that occur at prison, such as deprivation of good-time credits and other prison disciplinary matters, this does not make § 2241 actions like ‘condition of confinement’ lawsuits, which are brought under civil rights laws.” (citation omitted)). A district court lacks jurisdic tion under § 2241 to consider a claim seeking transfer to another BOP institution. Palma-Salazar , 677 F.3d at 1038-39. Mr. Wills summarily labels his § 2241 application a “challeng[e to] the execution of his sentence,” 4 Aplt. Reply Br. at 12. He does not distinguish—or even

4 Our research revealed one case in which this court treated a transfer-related claim as an “attack[ on] the ex ecution of [a state prisoner’s ] sentence as it affects the fact or duration of his confinement in Colorado.” Montez v. McKinna , 208 F.3d 862, 865 (10th Cir. 2000). But the scenario in Montez was entirely differe nt than the one Appellate Case: 21-1383 Document: 010110745151 Date Filed: 09/27/2022 Page: 56 mention— Palma-Salazar and Garcia . Instead, he cites two other lines of cases for the broad proposition that “§ 3621 violations are judicially re viewable via habeas corpus § 2241 application,” id. at 10. True, the court exercise d jurisdiction in these cases. But all of them are readily distinguishable by (1 ) the absence of consideration of a similar jurisdictional question or (2) the presence of a claim seeking a shortened sentence. The first set of cases cited by Mr. W ills involved challenges to the BOP’s categorical practices and procedures within § 3621(b), which conflicted with clear congressional intent prescribing i ndividualized determinations. See Wedelstedt v. Wiley , 477 F.3d 1160, 1161-62 (10th Cir. 2007); Garza v. Davis , 596 F.3d 1198, 1201 (10th Cir. 2010). Wedelstedt and Garza are distinguishable from a jurisdictional perspective: we did not address th e district court’s jurisdiction in Wedelstedt , and the jurisdictional dismissal in Garza stemmed from the prisoner’s failure to exhaust his administrative remedies. “[A] court is not bound by a prior exercise of jurisdiction in a case where it was not questioned . . . .” Palma-Salazar , 677 F.3d at 1036 (internal quotation marks omitted) (noting that “ Wedelstedt did not specifically address the jurisdictional questio n at issue” in Palma-Salazar ); cf. United States v. Turrieta ,

under consideration here. Fi rst, we were assessing whet her the state prisoner should have filed an application un der § 2241 or 28 U.S.C. § 2254 when we reasoned that “focusing on where [a] sentence will be serv ed[] seems to fit better under the rubric of § 2241.” Id. Second, the prisoner in Montez was challenging a state’s authority to incarcerate him in a state other than the one in which he was convicted and sentenced. See id. at 864. Ultimately, we held that the prisoner did not have a cognizable claim based on th e interstate transfer. Id. at 865-66. The parties did not raise the issue whether the pr isoner was really filing a civi l rights claim, and the court did not consider it. Appellate Case: 21-1383 Document: 010110745151 Date Filed: 09/27/2022 Page: 67 875 F.3d 1340, 1346 (10th Cir. 2017) (“When parties do not raise or consider an issue and the court does not address it, the case is not a binding precedent on that point.” (brackets and internal quotation marks omitted)). The second set of cases cited by Mr. Wills involved challenges to the denial, due to certain prior convictions, of early re lease under § 3621(e)(2) upon successful completion of a drug-treatment program. See Hunnicutt v. Hawk , 229 F.3d 997, 999 (10th Cir. 2000) (per curiam); Fristoe v. Thompson , 144 F.3d 627, 629 (10th Cir. 1998); Redmon v. Wiley , 349 F. App’x 251, 253 ( 10th Cir. 2009). These ca ses are inapposite for a different reason. Early release affects the length of imprisonment. And, as discussed above, a claim is “cognizable under § 2241 . . . [if] an individual seeks . . . a shortened period of[] physical imprisonment.” Palma-Salazar , 677 F.3d at 1037 n.2. By contrast, even if Mr. Wills succeeded in obtaining an order directing the BOP to reconsider his transfer requests and provide an explanation fo r its decisions (his stated goal), his period of incarceration would remain the same. Ther efore, § 2241 is not the proper vehicle for his claim. C. Section 3621(b) precludes judici al review of the BOP’s placement decisions. The district court also corre ctly held that § 3621(b) de prived it of jurisdiction to review the BOP’s decision on Mr. Wills’s tr ansfer request. The final sentence of § 3621(b) expressly states that “[n]otw ithstanding any other provision of law, Appellate Case: 21-1383 Document: 010110745151 Date Filed: 09/27/2022 Page: 78 a designation of a place of im prisonment under this subs ection is not reviewable by any court.” Mr. Wills contends this “proviso . . . doe s not apply to judicial review of due process challenges to the improper applica tion, or non-application, of recognized statutory provisions, regulatio ns, and/or procedures.” Ap lt. Reply Br. at 11. But § 3621(b) contains no such lim iting language. And “when interpreting any statute, we start with the statute’s plain language and a ssume that the legislative purpose is expressed by the ordinary meaning of the words used.” United States v. Hernandez-Calvillo , 39 F.4th 1297, 1302 (10th Cir. 2022) (internal quot ation marks omitted). Mr. Wills further contends he only asked the district c ourt to “‘order the BOP to reconduct’ (or to actually condu ct, for the first time) the tr ansfer determining process” and to provide a written explana tion of its reasoning during “t he reprocess.” Aplt. Reply Br. at 16-17. Again, we are not persuaded. To order reconsiderati on, a court would first have to find a deficiency, which it could no t do without reviewing the propriety of the BOP’s decisions in direct c ontravention of § 3621(b). D. Pending Motions We deny Mr. Wills’s motion to strike th e parts of the warden’s answer brief that reference his convictions and unsucce ssful appeals, as well as his emergency motion to strike the entire s upplemental record or, alterna tively, certain district-court documents within it that also reference his convictions and unsuccessful appeals. Mr. Wills states that the warden has acted in bad fa ith by presenting irrelevant, incendiary, and prejudicial information to the court. But this type of background Appellate Case: 21-1383 Document: 010110745151 Date Filed: 09/27/2022 Page: 89 information is routinely pres ented during appeals, and its inclusion does not bias the court or affect our ability to act impartially. We deny Mr. Wills’s motion for a ppointment of a ppellate counsel. We grant Mr. Wills’s motion for leav e to proceed on appeal without prepayment of costs or fees.
CONCLUSION We affirm the district court’s dismi ssal of Mr. Wills’s § 2241 application for lack of jurisdiction.

Entered for the Court
Carolyn B. McHugh Circuit Judge Appellate Case: 21-1383 Document: 010110745151 Date Filed: 09/27/2022 Page: 9