Smith v. Oliver

Filing 24

ORDER Of Dismissal. The Amended Application for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 (ECF No. 8 ), filed by Horatio DeMarious Smith, is DISMISSED WITHOUT PREJUDICE. Leave to proceed in forma pauperis on appeal isdenied for the purpose of appeal. By Judge Lewis T. Babcock on 6/20/2014. (klyon, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-00452-BNB
HORATIO DEMARIOUS SMITH,
Applicant,
v.
JOHN C. OLIVER,
Respondent.

ORDER OF DISMISSAL

Applicant, Horatio Demarious Smith, is a prisoner in the custody of the Federal
Bureau of Prisons at the United States Penitentiary in Florence, Colorado. Mr. Smith
initiated this action by filing pro se a Petition for a Writ of Habeas Corpus Pursuant to 28
U.S.C. § 2241 in the United States District Court for the District of Pennsylvania. The
action was transferred to this Court on February 21, 2014, because Applicant is
incarcerated at USP-Florence.
On February 25, 2014, Magistrate Judge Boyd N. Boland reviewed the Petition
and determined that it was deficient because it was not filed on the court-approved
§ 2241 Application form. Magistrate Judge Boland directed Mr. Smith to file his claims
on the court-approved form within thirty days, and to either pay the $5.00 filing fee or file
a § 1915 motion and affidavit on the court-approved form. Mr. Smith filed his Amended
Application for Relief Pursuant to 28 U.S.C. § 2241 (ECF No. 8) on March 24, 2014 and
subsequently paid the $5.00 filing fee.
On April 2, 2014, Magistrate Judge Boland entered an order (ECF No. 12)

directing the Respondent to file a preliminary response to the Amended Application
asserting the affirmative defense of exhaustion of administrative remedies if the
government intended to raise the defense. Respondent filed a preliminary response on
April 24, 2014 (ECF No. 17) asserting the exhaustion defense. Mr. Smith filed a reply
on May 9, 2014. (ECF No. 18).
The Court must construe liberally Mr. Smith’s filings because he is not
represented by an attorney. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, the Court should not be an
advocate for a pro se litigant. See Hall, 935 F.2d at 1110. For the reasons stated
below, the § 2241 Application will be dismissed, without prejudice.
Mr. Smith asserts in the Application that he has been denied due process in
connection with a hearing for his Referral for Designation to a Special Management Unit
(SMU) held on July 11, 2013. (ECF No. 18, at 17). The Hearing Administrator
recommended that Applicant be designated to an SMU. (Id. at 18-20). The Regional
Director concurred in the Hearing Administrator’s findings on July 16, 2013. (Id. at 21).
The Designation and Sentence Computation Center (DSCC) approved Applicant’s
designation to an SMU on July 24, 2013. (Id.). Mr. Smith received notice of the DSCC
decision on December 4, 2013. (Id.).
Mr. Smith asserts two claims in the Application: (1) he was not given 24-hours
notice of the charges before the hearing; and (2) the hearing administrator was biased
due to a previous interaction with the Applicant. (ECF No. 8, at 3, 5).
After review, the Court has determined that Mr. Smith’s claims are not properly
filed in a 28 U.S.C. § 2241 action. “The essence of habeas corpus is an attack by a
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person in custody upon the legality of that custody, and . . . the traditional function of the
writ is to secure release from illegal custody.” See Preiser v. Rodriguez, 411 U.S. 475,
484 (1973). A § 2241 petition challenges the execution of a prisoner’s sentence. See
McIntosh v. United States Parole Comm’n, 115 F.3d 809, 811 (10th Cir. 1997).
Applicant’s placement in the SMU does not affect the duration of his sentence.
Although Mr. Smith seeks restoration of vested good time credits in his Request for
Relief (see ECF No. 8, at 5), the Hearing Administrator’s Report on Referral for
Designation to a [SMU] did not sanction Applicant with the forfeiture of good time
credits. (See ECF No. 18, at 18-20). Mr. Smith’s challenge to his placement in the
SMU concerns the conditions of his confinement and is cognizable in a civil rights
action. See Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971), and 28
U.S.C. § 1331, see Standifer v. Ledezma, 653 F.3d 1276, 1280 (10th Cir. 2011).
Accordingly, it is
ORDERED that the Amended Application for Writ of Habeas Corpus Pursuant to
28 U.S.C. § 2241 (ECF No. 8), filed by Horatio DeMarious Smith, is DISMISSED
WITHOUT PREJUDICE. Mr. Smith may raise his claims in a civil rights action. It is
FURTHER ORDERED that leave to proceed in forma pauperis on appeal is
denied for the purpose of appeal. The Court certifies pursuant to 28 U.S.C.
§ 1915(a)(3) that any appeal from this order would not be taken in good faith. See
Coppedge v. United States, 369 U.S. 438 (1962). If Applicant files a notice of appeal he
must also pay the full $505 appellate filing fee or file a motion to proceed in forma
pauperis in the United States Court of Appeals for the Tenth Circuit within thirty days in
accordance with Fed. R. App. P. 24.
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DATED at Denver, Colorado, this 20th day of

June , 2014.

BY THE COURT:

s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court

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