United States District Court, S.D. Illinois
KURT JOHNSON, No. 13177-081, Petitioner,
TODD SLOOP, Respondent.
MEMORANDUM AND ORDER
Herndon, United States District Judge
se Petitioner Kurt Johnson, currently incarcerated in
the Federal Correctional Institution at Marion, Illinois
(“Marion”), brings this habeas corpus action
pursuant to 28 U.S.C. § 2241 challenging his placement
in the Communication Management Unit (“CMU”) at
Marion. Petitioner contends that the CMU is not part of the
Bureau of Prisons (“BOP”), so his being housed
there should be considered a waiver of jurisdiction over him
by the United States. (Doc. 1, p. 1-2). Because of this
alleged waiver, Petitioner argues that he is entitled to
immediate release from custody. (Doc. 1, p. 2).
case is now before the Court for a preliminary review of the
Petition pursuant to Rule 4 of the Rules Governing
Section 2254 Cases in United States District Courts, which
provides that upon preliminary consideration by the district
court judge, “[i]f it plainly appears from the petition
and attached exhibits that the petitioner is not entitled to
relief in the district court, the judge must dismiss the
petition and direct the clerk to notify the
petitioner.” Rule 1(b) of those Rules gives this Court
the authority to apply the rules to other habeas corpus
was sentenced to 300 months imprisonment on March 18, 2008 in
United States v. Heineman et al., No. 05-cr-611-WHA
(N.D. Cal. March 18, 2008) (“Criminal Case”).
(Doc. 1, p. 1). Petitioner filed a Motion to Vacate under 28
U.S.C. § 2255 on April 21, 2011. Criminal Case at Doc.
749. The motion was denied on July 14, 2011. Id. at
Doc. 759. He also filed several appeals in that case, none of
which are relevant to the instant case. Petitioner was placed
in the CMU on March 11, 2013. (Doc. 1, p. 1). He claims the
“CMUs are not the BOP and regardless of their function
or purpose are not a lawful extension of Congressional
Authority.” Id. Petitioner outlines the
“tell-tale signs that CTU is not BOP even though the
color of BOP operations is used as part of the ruse and
fraud.” (Doc. 1, pp. 1-2). These include that
“CMUs are not part of the BOP's funding . . . the
security monitoring is CTU protocols . . . [and] [t]he CMUs
obstruct justice, steal legal work, violate postal laws,
censor content, and prevent any viable methods of regress
from grievances[, ]” among other things. (Doc. 1, p.
claims that because he “is currently housed in the
Marion CMU in violation of the order of the court . . . the
United States has waived custodial jurisdiction, entitling
petitioner to immediate release.” Id.
Petitioner asserts that this “is not a collateral
attack on the conviction which facts are irrelevant. This is
a condition of confinement claim which merges with a waiver
of custody and custodial jurisdiction.” Id.
Petitioner further asserts that the United States “has
no standing to oppose this petition in that they have
stipulated to the facts through a foreign judgment with
domestic comity by and through treaty to which they are
ratified parties.” (Doc. 1, p. 3).
Court is obligated to independently evaluate the substance of
Petitioner's claims to determine if the correct
statute-in this case 28 U.S.C. § 2241-is being invoked.
See Godoski v. United States, 304 F.3d 761, 763 (7th
Cir. 2002) (court must evaluate independently the substance
of the claim being brought, to see if correct statute is
being invoked). A petition for a writ of habeas corpus is the
proper route “[i]f the prisoner is seeking what can
fairly be described as a quantum change in the level of
custody-whether outright freedom, or freedom subject to the
limited reporting and financial constraints of bond or parole
or probation.” Graham v. Broglin, 922 F.2d
379, 381 (7th Cir. 1991). If, however, the prisoner “is
seeking a different program or location or environment, then
he is challenging the conditions rather than the fact of
confinement and his remedy is under civil rights law.”
Id.; see also Pischke v. Litscher, 178 F.3d
497, 500 (7th Cir. 1999). Changes in a prisoner's
security level or changes in confinement from one prison to
another cannot be attacked using 28 U.S.C. § 2241.
See Bunn v. Conley, 309 F.3d 1002, 1008 (7th Cir.
2002); DeWalt v. Carter, 224 F.3d 607, 617 (7th Cir.
2000); Graham, 922 F.2d at 381; Pischke,
178 F.3d at 499.
brings this action under the umbrella of habeas corpus law,
28 U.S.C. § 2241. However, he is challenging his
placement in Marion's CMU and claiming that, only as a
result of this change in security level, should he be freed
from incarceration because the United States waived custody
over him by placing him there. This is a self-serving
conclusion wholly unsupported by the law or the sentence
imposed in his criminal case, and Petitioner does not appear
entitled to habeas relief because of it. See Glaus v.
Anderson, 408 F.3d 382, 386 (7th Cir. 2005) (affirming
dismissal of § 2241 petition based on unconstitutional
conditions of confinement despite suggestion release was
appropriate remedy). His transfer to the CMU did not effect a
quantum change in his custody and was merely a change in
security level, which is not susceptible to attack under
§ 2241. See Singleton v. Walton, No.
14-cv-1430, 2015 WL 300421 (S.D. Ill. Jan. 22, 2015);
Warren v. Walton, No. 14-cv-1412, 2015 WL 232354
(S.D. Ill. Jan. 16, 2015); Warren v. Hollingsworth,
No. 09-cv-666-JPG, 2009 WL 4894579 (S.D. Ill.Dec. 11, 2009).
See also Bunn, 309 F.3d at 1008; DeWalt,
224 F.3d at 617; Graham, 922 F.2d at 381;
Pischke, 178 F.3d at 499. Petitioner will remain a
federal inmate at USP-Marion (or whatever facility he may be
transferred to next) until his prison term is served.
claims are, at their core, challenges to the conditions of
his confinement. These conditions include the security
monitoring protocols employed in the CMU,
“indeterminate administrative detention and other
constitutional violations, ” theft of legal work,
violation of postal laws, censorship of content, and failure
to address grievances. (Doc. 1, p. 2). Petitioner even admits
in his Petition that this “is a condition of
confinement claim.” Id. As noted above, a
petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2241 is not the proper vehicle for attacking
conditions of confinement. Therefore, the petition for a writ
of habeas corpus must be summarily dismissed.
claims are akin to those raised by a federal prisoner in an
action brought pursuant to Bivens v. Six Unknown Named
Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971).
While courts have, in the past, construed a
mistakenly-labeled habeas corpus petition as a civil rights
complaint, see, e.g., Graham, 922 F.2d at
381-82 (collecting cases), the Seventh Circuit has made it
clear that district courts should not resort to this
practice. Bunn v. Conley, 309 F.3d 1002, 1007 (7th
Cir. 2002); Moore v. Pemberton, 110 F.3d 22, 24 (7th
Cir. 1997). This is particularly true where conversion of the
case may lead to unfavorable consequences for Petitioner
under the Prison Litigation Reform Act. See generally
Bunn, 309 F.3d at 1004-07. These consequences include
possible exhaustion defenses, whether Petitioner has named
the correct defendants, and whether he is able to pay the
proper filing fee for the action (presently $400.00), as
opposed to the fee for a petition for writ of habeas corpus
(presently $5.00). For these reasons, the Court will not
re-characterize the instant habeas petition as a complaint
brought pursuant to Bivens, and it offers no opinion
regarding the merits of Petitioner's Bivens
2241 cannot provide Petitioner with the appropriate relief,
so this action is ...