Gilbert v. Fisher et al

Filing 7

MEMORANDUM OPINION AND ORDER OF DISMISSAL. Signed by District Judge Tom S. Lee on 3/20/2017 (Copy mailed to plaintiff) (cwl)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION

WALTER LEE GILBERT, a/k/a,
LAMARCUS LEE HILLARD, #99903-555

PETITIONER

VERSUS

CAUSE NO. 3:17cv19-TSL-RHW

MARSHAL LEE FISHER and JACK FOX

RESPONDENTS

MEMORANDUM OPINION AND ORDER OF DISMISSAL
This 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.
BACKGROUND
Petitioner 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.
On 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.
DISCUSSION
The 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.
Cir. 1995).

Orellana v. Kyle, 65 F.3d 29, 31 (5th

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.”
States, 525 F.2d 933, 935 (5th Cir. 1976).

Pierre v. United

On the other hand, a

civil rights action “is an appropriate legal vehicle to attack
unconstitutional . . . conditions of confinement.”
F.3d at 31.

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Orellana, 65

The 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 petition.”

Id.

Subsequently, 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.

Id.

Like 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 3).

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He does 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.
Rather 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).
Even if 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 requirement.
IT IS THEREFORE ORDERED AND ADJUDGED that, for the reasons
stated above, this case is DISMISSED WITHOUT PREJUDICE.

A

separate final judgment shall issue pursuant to Federal Rule of
Civil Procedure 58.
SO ORDERED AND ADJUDGED, this the 20th day of March, 2017.

/s/ Tom S. Lee
UNITED STATES DISTRICT JUDGE
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