Franklin v. Lucero et al

Filing 17

REPORT AND RECOMMENDATIONS re 11 MOTION for Order filed by Bryce Franklin, 1 Petition for 2254 Relief filed by Bryce Franklin, and 14 MOTION for Hearing filed by Bryce Franklin by Magistrate Judge Jerry H. Ritter. Objections to R&R due by 10 /31/2019. Add 3 days to the deadline if service is by mailing it to the person's last known address (or means described in Fed. R. Civ. P. 5(b)(2)(D) and (F)); if service is by electronic means, no additional days are added. (Fed. R. Civ. P. 6(d); Fed. R. Crim. P. 45(c).) (plp)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
BRYCE FRANKLIN,
Petitioner,
v.

No. 1:18-cv-1239-MV-JHR

ALISHA LUCERO, Warden,
ATTORNEY GENERAL FOR
THE STATE OF NEW MEXICO,
Respondents.
MAGISTRATE JUDGE’S PROPOSED FINDINGS AND RECOMMENDATION
This matter comes before the Court on Mr. Franklin’s: Petition Under 28 U.S.C. § 2254
for a Writ of Habeas Corpus [Doc. 1] filed on December 28, 2018; Motion for Respondents to
Provide a Copy of D.N.M.L.R. [Doc. 11], filed May 9, 2019; and Request for Hearing [Doc. 14],
filed August 1, 2019. On November 21, 2018, United States District Judge Martha Vasquez
referred the matter for recommended findings and final disposition to U.S. Magistrate Judge Jerry
H. Ritter. [Doc. 4]. The determinative question in this case is whether declaratory and injunctive
relief is available in a federal habeas action challenging step regression in the New Mexico
Department of Corrections’ four-step Predatory Behavior Management Program (PBMP). Having
reviewed the parties’ submissions and controlling law, I present these proposed findings and
recommend that the Court deny the relief sought by Mr. Franklin.
FACTUAL AND PROCEDURAL BACKGROUND
Mr. Franklin is currently serving a term of life imprisonment plus 7 1/2 years after he was
convicted of one count of first degree murder, contrary to NMSA 1978, Section 30-02-01(A)(1)
(1994); one count of tampering with evidence, contrary to NMSA 1978, Section 30-22-05 (2003);

one count of conspiracy to tamper with evidence, contrary to NMSA 1978, Sections 30-22-05 and
30-28-2 (1979); and two counts of unlawful use or theft of an ATM or debit card, contrary to
NMSA 1978, Section 58-16-16 (1990). [Doc. 12-1, pp. 8-11].
On May 8, 2017, Mr. Franklin was referred to PBMP for possessing documents deemed to
be escape paraphernalia. [Doc. 12-1, pp. 73-74]. Mr. Franklin asserts that by September 29, 2017,
he had completed step one of PBMP and was one week from completing step two, when he was
“step regressed” to the beginning of step two for an alleged mail violation. [Doc. 1, pp. 1, 9; Doc.
12-1, p. 38]. According to Mr. Franklin, the step regression was implemented despite the absence
of evidence to support the alleged mail violation and without a hearing or opportunity for Mr.
Franklin to be heard on the matter and without the right to appeal. [Doc. 1, pp. 1, 9; Doc. 12-1, pp.
38-39]. Mr. Franklin further claims that the step regression added at least 90 days to his time in
PMBP. [Doc. 1, pp. 1, 9; Doc. 12-1, pp. 38-39]. Importantly, the record does not reflect and Mr.
Franklin does not allege that the step regression extended the length of his imprisonment.
On November 8, 2017, Mr. Franklin filed a Petition for Writ of Habeas Corpus in the state
court claiming that the step regression violated his right to due process under the Fourteenth
Amendment to the United States Constitution. [Doc. 12-1, pp. 36-49]. Mr. Franklin sought reversal
of the step regression, restoration of privileges lost due to the step regression, and declaratory relief
regarding the constitutionality of the PMBP step regression procedure. [Doc. 12-1, p. 50]. Mr.
Franklin’s state habeas petition was summarily dismissed on June 20, 2018. [Doc. 12-1, pp. 9798].
Mr. Franklin filed his Petition Under § 2254 for Writ of Habeas Corpus in this Court on
December 28, 2018. [Doc. 1]. After its initial review of the petition, the Court determined that the
Petition should be construed under 28 U.S.C. § 2241 (2012), because Mr. Franklin was not

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challenging the validity of his sentence. [Doc. 7]. A review of the full briefing on Mr. Franklin’s
federal habeas petition reveals that Mr. Franklin is seeking declaratory relief regarding the
constitutionality of the process by which step regression in the PBMP is administered. [Doc. 1, p.
8; Doc. 13, pp. 3, 7]. Mr. Franklin also seeks an Order directing the New Mexico Department of
Corrections “to establish step regression procedures that provide basic due process.” [Doc. 1, p.
8].
ANALYSIS
The threshold issue raised by Mr. Franklin’s habeas petition is whether declaratory and
injunctive relief is available through a federal habeas corpus action where: a state prisoner
challenges the process by which his progress through a multi-step administrative segregation
program is delayed based on alleged program violations; the challenged process affords no right
to prior notice, hearing, or appeal; and the delay extends the prisoner’s placement in the program
where he is subject to segregation from other prisoners, 23-hour per day lockdown, and other
restrictions greater than the general prison population.
Proper 28 U.S.C. § 2241 Challenges Address the Execution of a Sentence
Under 28 U.S.C. § 2241, to obtain habeas corpus relief, an inmate must demonstrate that
he “is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C.
§ 2241(c)(3). “A habeas application under 28 U.S.C. § 2241 generally attacks the execution of a
sentence rather than its validity.” Leatherwood v. Allbaugh, 861 F.3d 1034, 1041 (10th Cir. 2017);
see Straley v. Utah Bd. of Pardons, 582 F.3d 1208, 1213 (10th Cir. 2009) (“[State prisoner’s] §
2241 habeas petition can only challenge the execution of his sentence, not the validity of his
conviction and the original sentence.”); Yellowbear v. Wyoming Att’y Gen., 525 F.3d 921, 924
(10th Cir. 2008) (“Section [ ] 2241 is a vehicle for [a state prisoner] ... attacking the execution of

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a sentence.” (citations omitted)). “It challenges the fact or duration of a prisoner’s confinement
and seeks the remedy of immediate release or a shortened period of confinement.” Leatherwood,
861 F.3d at 1041 (internal quotation marks and citation omitted).
The Relief Sought by Mr. Franklin is Not Available Under § 2241 Since Mr. Franklin Does
Not Challenge the Execution of His Sentence
Although some challenges to prison disciplinary proceedings are properly brought under §
2241, see McIntosh v. U.S. Parole Comm’n, 115 F.3d 809, 812 (10th Cir. 1997), others are not.
Under prevailing Tenth Circuit law, “the types of claims cognizable under § 2241 are those in
which an individual seeks either immediate release from, or a shortened period of, physical
imprisonment, i.e., placement on parole or in a parole-like custodial setting, or immediate release
from, or a shortened period of, custody altogether.” Palma-Salazar v. Davis, 677 F.3d 1031, 1037
n. 2 (10th Cir. 2012); see also Boyce v. Ashcroft, 251 F.3d 911, 914 (“Generally, because they
contest the fact or duration of custody, prisoners who want to challenge their convictions,
sentences or administrative actions which revoke good-time credits, or who want to invoke other
sentence-shortening procedures, must petition for a writ of habeas corpus.”), vacated as moot, 268
F.3d 953 (10th Cir. 2001); United States v. Garcia, 470 F.3d 1001, 1003 (10th Cir. 2006)
(“Although Boyce was vacated as moot on rehearing, we are persuaded by its reasoning.”).
Mr. Franklin’s petition alleges that he was regressed without prior notice, a hearing, or the
right to appeal. [Doc. 1, pp. 1, 9; Doc. 12-1, pp. 38-39]. There is no indication that the challenged
disciplinary action impacted Mr. Franklin’s good-time credits or the duration of his imprisonment
and Mr. Franklin does not seek the remedy of immediate release or a shortened period of
confinement. [Doc. 1, p. 8; Doc. 13, pp. 3, 7]. Therefore, Mr. Franklin’s claims cannot be
characterized as challenges to the execution of his sentence. See Leatherwood, 861 F.3d at 1041
(“A habeas application under 28 U.S.C. § 2241 generally attacks the execution of a sentence rather
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than its validity[,]…challenges the fact or duration of a prisoner’s confinement and seeks the
remedy of immediate release or a shortened period of confinement.”).
Accordingly, the relief sought by Mr. Franklin is not available under § 2241. See Hall v.
Williams, 221 F.3d 1352 (10th Cir. 2000) (holding that a prisoner’s challenge to his status in
administrative segregation was not cognizable under § 2241).
The Declaratory and Injunctive Relief Sought by Mr. Franklin is Available Under § 1983
42 U.S.C. § 1983 (2012) provides a remedy for “[p]risoners who raise constitutional
challenges to other prison decisions—including transfers to administrative segregation, exclusion
from prison programs, or suspension of privileges, e.g. conditions of confinement.” Boyce, 251
F.3d at 914 (recognizing that constitutional challenges to a prisoner’s conditions of confinement
“must proceed under Section 1983 or Bivens [v. Six Unknown Named Agents of the Fed. Bureau
of Narcotics, 403 U.S. 388 (1971)]”).
Therefore, where a prisoner challenges the conditions of confinement rather than the
execution of his sentence, his challenge is properly characterized as a § 1983 claim. See Requena
v. Roberts, 552 F. App’x 853, 856 (10th Cir. April 7, 2014) (unpublished) (holding that the
inmate’s claim, that he was denied the opportunity to present documentary evidence at the hearing
that resulted in his placement in segregation, constituted a challenge to the process affecting only
his conditions of confinement, and was therefore properly characterized as a § 1983 claim rather
than a § 2241 habeas claim); Palma-Salazar, 677 F.3d at 1035 (“It is well-settled law that prisoners
who wish to challenge only the conditions of their confinement ... must do so through civil rights
lawsuits ... not through federal habeas proceedings.” (omissions in original) (internal quotation
marks and citation omitted).
Here, Mr. Franklin’s constitutional challenge to a disciplinary action that allegedly
increased the duration of his time in an administrative segregation program constitutes a challenge
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to the conditions of his confinement, appropriately brought under § 1983. See Boyce, 251 F.3d at
914.
Further, the remedy sought by Mr. Franklin—declaratory and injunctive relief—is
available through a § 1983 action. See Richards v. Bellmon, 941 F.2d 1015, 1018 (10th Cir. 1991)
(recognizing that while Ҥ 1983 is not available when a state prisoner seeks a release from or
reduction of confinement, it is available when a prisoner seeks (1) to challenge the conditions of
his confinement or (2) a declaratory judgment as a predicate to (a) an award of money damages or
(b) prospective injunctive relief.”) (emphasis in original)).
CONCLUSION
For the foregoing reasons, I conclude that Mr. Franklin’s claims are not cognizable under §
2241. Therefore, the I recommend that:
1. The Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus [Doc. 1] be
DENIED and that a certificate of appealability be DENIED;
2. The Request for Hearing [Doc. 14] be DENIED; 1 and
3. The Motion for Respondents to Provide a Copy of D.N.M.L.R. [Doc. 11] be DENIED as
moot.

________________________________________
JERRY H. RITTER
UNITED STATES MAGISTRATE JUDGE

1

Before issuing this PFRD, I considered whether an evidentiary hearing was necessary, as instructed by Rule 8(a) of
the Rules Governing Section 2254 Cases for the United States District Courts. Because the outcome of this Motion
turns on matters of law and its recommended disposition requires no further factual development, I concluded that no
evidentiary hearing was necessary. I therefore recommend that Mr. Franklin’s Request for Hearing [Doc. 14] be
denied.

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THE PARTIES ARE FURTHER NOTIFIED THAT WITHIN 14 DAYS OF SERVICE of
a copy of these Proposed Findings and Recommended Disposition, they may file written objections
with the Clerk of the District Court pursuant to 28 U.S.C. § 636(b)(1).
A party must file any objections with the Clerk of the District Court within the fourteen-day
period if that party wants to have appellate review of the proposed findings and
recommended disposition. If no objections are filed, no appellate review will be allowed.

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