United States District Court, S.D. Mississippi, Northern Division
WALTER LEE GILBERT, a/k/a, LAMARCUS LEE HILLARD, #99903-555 PETITIONER
MARSHAL LEE FISHER and JACK FOX RESPONDENTS
MEMORANDUM OPINION AND ORDER OF DISMISSAL
LEE UNITED STATES DISTRICT JUDGE.
matter is before the court sua sponte. Pro
se petitioner Walter Lee Gilbert, also known as Lamarcus
Lee Hillard, is incarcerated with the Bureau of Prisons
(“BOP”) on behalf of the Mississippi Department
of Corrections (“MDOC”). He filed this Petition
for Writ of Habeas Corpus, pursuant to 28 U.S.C. § 2241,
challenging his housing with the Bureau of Prisons. He seeks
a transfer back to a county jail in Hinds County,
Mississippi. The Court has considered and liberally construed
the pleadings. As set forth below, this case is dismissed.
is a Mississippi inmate, who is currently serving sentences
handed down in 2003 and 2008 from Hinds and Sunflower
Counties, respectively. He is currently serving those
sentences in the administrative, maximum security United
States Penitentiary in Florence, Colorado. He was transferred
to federal prison, by an agreement between MDOC and BOP. He
does not have a federal conviction.
January 9, 2017, petitioner filed this habeas action,
invoking § 2241, and he has paid the $5 filing fee. He
argues that the agreement between the State and federal
government to house him with the BOP is void, because it is
based on fraud and bribery. Petitioner also claims that, in
the federal prison, he is “not being granted the right
to earned good time credits 10 days of 30 days, GED credits
per Judge Order, Program Completion over 40 certificates per
the Mississippi State Constitution, ” and is being
“denied a job.” (Pet. at 3). Finally, he asserts
that he is being housed under the wrong name. Petitioner asks
this court to transfer him back to custody in Mississippi.
court questions whether habeas corpus is available for
Petitioner's claims. If a favorable ruling would
“automatically entitle [the prisoner] to accelerated
release, ” then the action is one for habeas corpus.
Orellana v. Kyle, 65 F.3d 29, 31 (5th Cir. 1995). If
not, then the proper vehicle may be a civil rights action.
Id. Habeas review “is not available to review
questions unrelated to the cause of detention.”
Pierre v. United States, 525 F.2d 933, 935 (5th Cir.
1976). On the other hand, a civil rights action “is an
appropriate legal vehicle to attack unconstitutional . . .
conditions of confinement.” Orellana, 65 F.3d
Fifth Circuit Court of Appeals has held that habeas review is
not available to obtain transfer to another prison.
Hernandez v. Garrison, 916 F.2d 291, 293 (5th Cir.
1990). In Hernandez, a federal inmate alleged
discrimination, overcrowding and denial of medical care at
the Federal Correctional Institute in Seagoville, Texas.
Id. at 292. He filed a § 2241 petition and
sought transfer to another federal prison. Id. at
293. The court held that this “type of injunctive
relief is not a proper subject for a habeas corpus
this court has held that a federal prisoner, who was
transferred to MDOC to serve his federal sentence, could not
file a § 2241 habeas petition to challenge that
transfer. Hathaway v. Fed. Bureau of Prisons, No.
2:10cv182-KS-MTP, 2010 U.S. Dist. LEXIS 91502 at *2
(S.D.Miss. Sept. 1, 2010). This was because success in the
case would not automatically entitle the prisoner to release.
Hernandez and Hathaway, petitioner
challenges where he is housed. This claim is not cognizable
in this § 2241 habeas action, because it does not
concern the cause of petitioner's detention, and success
will not automatically entitle him to accelerated release.
Indeed, petitioner does not challenge either of his
convictions or sentences. The closest petitioner comes is to
argue that he is “not being granted the right to earned
good time credits 10 days of each 30 days.” (Pet. at
not ask for speedier release, however, or assert that he is
being deprived of earned time that he has already accrued. He
merely seeks a transfer to a different prison.
than liberally construe this action as a civil rights case,
it will be dismissed without prejudice. See,
Lineberry v. United States, 380 F. App'x 452,
453 (5th Cir. June 8, 2010).
the Petition could be construed as challenging the fact or
duration of petitioner's sentences, it would still be
dismissed without prejudice. This is because he must first
exhaust his state court remedies before seeking federal
habeas relief. 28 U.S.C. § 2254(b)(1)(A). This gives
“the State the ‘opportunity to pass upon and
correct' alleged violations of its prisoners' federal
rights.” Baldwin v. Reese, 541 U.S. 27, 29
(2004) (quoting Duncan v. Henry, 513 U.S. 364, 365
(1995)). Petitioner contends to have exhausted his state
remedies because he has previously filed for relief from this
court. This is insufficient to satisfy the state exhaustion
IS THEREFORE ORDERED AND ADJUDGED that, for the
reasons stated above, this case is DISMISSED WITHOUT
PREJUDICE. A separate final judgment shall ...