NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

JOHN BRILEY, :

Civil Action No. 10-6736 (RBK)

Petitioner, :

v. : OPINION

DEPARTMENT OF JUSTICE, et al.,:

Respondents. :

APPEARANCES:

Petitioner pro se

John Briley

F.C.I. Fairton

P.O. Box 420

Fairton, NJ 08320

KUBLER, District Judge

Petitioner John Briley, a prisoner currently confined at the

Federal Correctional Institution at Fairton, New Jersey, has

submitted a petition for a writ of habeas corpus pursuant to 28

U.S.C. § 2241 and an application for leave to proceed in forma 1

 Section 2241 provides in relevant part: 1

(a) Writs of habeas corpus may be granted by the

Supreme Court, any justice thereof, the district courts

and any circuit judge within their respective

jurisdictions.

(c) The writ of habeas corpus shall not extend to a

prisoner unless-- ... (3) He is in custody in violation

of the Constitution or laws or treaties of the United

States ... .

Case 1:10-cv-06736-RBK Document 2 Filed 01/21/11 Page 1 of 7 PageID: 11
pauperis. The respondents are the Department of Justice and the

Bureau of Prisons.2

Based on Petitioner’s affidavit of indigence, this Court

will grant Petitioner leave to proceed in forma pauperis. 

Because it appears from a review of the Petition that Petitioner

is not entitled to relief, the Petition will be dismissed. See

28 U.S.C. § 2243.

I. BACKGROUND

Petitioner asserts that he is confined pursuant to a

judgment entered April 8, 2010, revoking his supervised release

and sentencing him to a term of imprisonment of one year and one

day. See United States v. Briley, Criminal No. 08-0395 (E.D.

Ark.). His anticipated release date is February 11, 2011.

Here, Petitioner contends that, because of his short term of

imprisonment, he has been wrongfully denied participation in

various prison programs, including college courses, vocational

education programs, the Edward Byrne Justice Assistant Grant

Program, the Federal Prisoner Re-entry Program, 42 U.S.C.

§ 17541, and the Bureau of Prisons Federal Prisoner Discharge

Gratuity of $500.

 These entities are not proper respondents in this 2

Petition. See, e.g., Rumsfeld v. Padilla, 542 U.S. 426, 434-436

(2004); 28 U.S.C. § 2242. However, because of the disposition of

this matter, the Court need not address this issue further.

2

Case 1:10-cv-06736-RBK Document 2 Filed 01/21/11 Page 2 of 7 PageID: 12
Plaintiff seeks an order from this Court compelling the

Bureau of Prisons to provide Petitioner with access to these

various prison programs, prior to and following his release.

II. STANDARDS FOR A SUA SPONTE DISMISSAL

United States Code Title 28, Section 2243 provides in

relevant part as follows:

A court, justice or judge entertaining an

application for a writ of habeas corpus shall forthwith

award the writ or issue an order directing the

respondent to show cause why the writ should not be

granted, unless it appears from the application that

the applicant or person detained is not entitled

thereto.

A pro se pleading is held to less stringent standards than

more formal pleadings drafted by lawyers. Estelle v. Gamble, 429

U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520 (1972). 

A pro se habeas petition and any supporting submissions must be

construed liberally and with a measure of tolerance. See Royce

v. Hahn, 151 F.3d 116, 118 (3d Cir. 1998); Lewis v. Attorney

General, 878 F.2d 714, 721-22 (3d Cir. 1989); United States v.

Brierley, 414 F.2d 552, 555 (3d Cir. 1969), cert. denied, 399

U.S. 912 (1970). Nevertheless, a federal district court can

dismiss a habeas corpus petition if it appears from the face of

the petition that the petitioner is not entitled to relief. See

Lonchar v. Thomas, 517 U.S. 314, 320 (1996); Siers v. Ryan, 773

F.2d 37, 45 (3d Cir. 1985), cert. denied, 490 U.S. 1025 (1989). 

See also 28 U.S.C. §§ 2243, 2255.

3

Case 1:10-cv-06736-RBK Document 2 Filed 01/21/11 Page 3 of 7 PageID: 13
III. ANALYSIS

This Petition must be dismissed for lack of jurisdiction.

A habeas corpus petition is the proper mechanism for a

prisoner to challenge the “fact or duration” of his confinement,

Preiser v. Rodriguez, 411 U.S. 475, 498-99 (1973), including

challenges to prison disciplinary proceedings that affect the

length of confinement, such as deprivation of good time credits,

Muhammad v. Close, 540 U.S. 749 (2004) and Edwards v. Balisok,

520 U.S. 641 (1997). See also Wilkinson v. Dotson, 544 U.S. 74

(2005). In addition, where a prisoner seeks a “quantum change”

in the level of custody, for example, where a prisoner claims to

be entitled to probation or bond or parole, habeas is the

appropriate form of action. See, e.g., Graham v. Broglin, 922

F.2d 379 (7th Cir. 1991) and cases cited therein. See also

Woodall v. Federal Bureau of Prisons, 432 F.3d 235, 237 (3d Cir.

2005) (challenge to regulations limiting pre-release transfer to

community corrections centers properly brought in habeas); Macia

v. Williamson, 2007 WL 748663 (3d Cir. 2007) (finding habeas

jurisdiction in challenge to disciplinary hearing that resulting

in sanctions including loss of good-time credits, disciplinary

segregation, and disciplinary transfer).

The Court of Appeals for the Third Circuit has held that

habeas corpus is an appropriate mechanism, also, for a federal

prisoner to challenge the execution of his sentence. See Coady

4

Case 1:10-cv-06736-RBK Document 2 Filed 01/21/11 Page 4 of 7 PageID: 14
v. Vaughn, 251 F.3d 480, 485-86 (3d Cir. 2001) (noting that

federal prisoners may challenge the denial of parole under

§ 2241); Barden v. Keohane, 921 F.2d 476, 478-79 (3d Cir. 1990)

(challenge to BOP refusal to consider prisoner’s request that

state prison be designated place for service of federal

sentence).

The Court of Appeals has noted, however, that “the precise

meaning of ‘execution of the sentence’ is hazy.” Woodall, 432

F.3d at 237. To the extent a prisoner challenges his conditions

of confinement, such claims must be raised by way of a civil

rights action. See Leamer v. Fauver, 288 F.3d 532 (3d Cir.

2002). See also Ganim v. Federal Bureau of Prisons, 235

Fed.Appx. 882, 2007 WL 1539942 (3d Cir. 2007) (challenge to

garden-variety transfer not cognizable in habeas); Castillo v.

FBOP FCI Fort Dix, 221 Fed.Appx. 172, 2007 WL 1031279 (3d Cir.

2007) (habeas is proper vehicle to challenge disciplinary

proceeding resulting in loss of good-time credits, but claims

regarding sanctioned loss of phone and visitation privileges not

cognizable in habeas).

Here, Petitioner’s challenges to his eligibility for certain

programs are the types of challenge to conditions of confinement

that must be brought by way of a civil rights action or action

for declaratory and injunctive relief.

5

Case 1:10-cv-06736-RBK Document 2 Filed 01/21/11 Page 5 of 7 PageID: 15
Because Petitioner has not prepaid the $350.00 filing fee

for a civil action, and his application for leave to proceed in

forma pauperis is deficient, and because of the consequences 3

that flow from a grant of leave to proceed in forma pauperis in a

civil rights action, or from any potential dismissal of a civil

rights complaint, this Court will not construe this matter as a

civil rights complaint. See 28 U.S.C. § 1915(b) (requiring

incremental payment of filing fee by prisoner granted leave to

proceed in forma pauperis); 28 U.S.C. § 1915(g) (the “threestrikes rule”) (“In no event shall a prisoner bring a civil

action or appeal a judgment in a civil action or proceeding under

this section if the prisoner has, on 3 or more prior occasions,

while incarcerated or detained in any facility, brought an action

or appeal in a court of the United States that was dismissed on

the grounds that it is frivolous, malicious, or fails to state a

claim upon which relief may be granted, unless the prisoner is

under imminent danger of serious physical injury.”).

Instead, this Petition will be dismissed without prejudice. 

Petitioner may file a separate civil complaint if he wishes to

pursue these claims. This Court expresses no opinion as to the

merits of Petitioner’s claims.

 Plaintiff has not provided the required certification as 3

to his institutional account balances. See Local Civil Rule

81.2(b) (habeas cases); 28 U.S.C. § 1915(a)(1), (2) (civil

actions).

6

Case 1:10-cv-06736-RBK Document 2 Filed 01/21/11 Page 6 of 7 PageID: 16
IV. CONCLUSION

For the reasons set forth above, the Petition will be

dismissed without prejudice for lack of jurisdiction. An

appropriate order follows.

s/Robert B. Kugler 

Robert B. Kugler

United States District Judge

Dated: January 21, 2011 

7

Case 1:10-cv-06736-RBK Document 2 Filed 01/21/11 Page 7 of 7 PageID: 17