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Spencer v. Bragg

United States Court of Appeals, Fifth Circuit
Feb 18, 2009
310 F. App'x 678 (5th Cir. 2009)

Summary

finding petitioner's claims of exposure to asbestos, lack of proper medical treatment, retaliation, and loss of legal notes would not result in his accelerated release and were thus not the proper subject matter for habeas review

Summary of this case from Nogales v. Dep't of Homeland Sec.

Opinion

No. 07-51452 Conference Calendar.

February 18, 2009.

Fernando Spencer, Anthony, NM, pro se.

Eduardo R. Castillo, U.S. Attorney's Office, Western District of Texas, El Paso, TX, for Respondent-Appellee.

Appeal from the United States District Court for the Western District of Texas, USDC No. 3:07-CV-160.

Before HIGGINBOTHAM, DENNIS, and PRADO, Circuit Judges.


Fernando Spencer, federal prisoner #10714-180, appeals the district court's dismissal of his 28 U.S.C. § 2241 petition without prejudice for lack of jurisdiction. The district court held that Spencer's claims, which relate to his alleged exposure to asbestos, lack of proper medical treatment, retaliation, and the loss of legal notes, related to the conditions of his confinement. Because success on these claims would not result in Spencer's accelerated release from prison, the district court held that they were not cognizable under § 2241.

Spencer argues that his application is proper under § 2241 because he is challenging the execution of his sentence and he seeks accelerated release from prison. He contends that the loss of his legal notes negatively impacted his 28 U.S.C. § 2255 proceeding, which he asserts could have resulted in his release from prison. Therefore, he argues that accelerated release is appropriate relief in this proceeding.

Where "a prisoner challenges an unconstitutional condition of confinement or prison procedure that affects the timing of his release from custody," the proper vehicle is a civil rights action if a determination in the prisoner's favor will not automatically result in his accelerated release. Carson v. Johnson, 112 F.3d 818, 820-21 (5th Cir. 1997). Even if Spencer could prove the claims he seeks to present, he has not shown a legal basis for obtaining accelerated release. Accordingly, we AFFIRM the district court's judgment dismissing the § 2241 petition without prejudice for lack of jurisdiction.

Spencer's motion for release pending appeal is DENIED.


Summaries of

Spencer v. Bragg

United States Court of Appeals, Fifth Circuit
Feb 18, 2009
310 F. App'x 678 (5th Cir. 2009)

finding petitioner's claims of exposure to asbestos, lack of proper medical treatment, retaliation, and loss of legal notes would not result in his accelerated release and were thus not the proper subject matter for habeas review

Summary of this case from Nogales v. Dep't of Homeland Sec.

finding that petitioner's claims of exposure to asbestos, lack of proper medical treatment, retaliation, and loss of legal notes were not cognizable as a habeas petition

Summary of this case from Francois v. Garcia

finding petitioner's claims of exposure to asbestos, lack of proper medical treatment, retaliation, and loss of legal notes would not result in his accelerated release and were thus not the proper subject matter for habeas review

Summary of this case from Barbosa v. Barr

finding petitioner's claims of exposure to asbestos, lack of proper medical treatment, retaliation, and loss of legal notes would not result in his accelerated release and were thus not the proper subject matter for habeas review

Summary of this case from Ojuma v. Barr

finding petitioner's claims of exposure to asbestos, lack of proper medical treatment, retaliation, and loss of legal notes would not result in his accelerated release and were thus not the proper subject matter for habeas review

Summary of this case from Ehimare v. Barr

finding petitioner's claims of exposure to asbestos, lack of proper medical treatment, retaliation, and loss of legal notes would not result in his accelerated release and were thus not the proper subject matter for habeas review

Summary of this case from Hernandez v. Mora

concluding that the petitioner's request for accelerated release did not sound in habeas because "he has not shown a legal basis for obtaining accelerated release"

Summary of this case from Francois v. Garcia

affirming the lower court's dismissal of petitioner's habeas claim even though he alleged that the conditions of confinement endangered his life

Summary of this case from Sacal-Micha v. Longoria
Case details for

Spencer v. Bragg

Case Details

Full title:Fernando SPENCER, Petitioner-Appellant v. Warden M. Thomas BRAGG…

Court:United States Court of Appeals, Fifth Circuit

Date published: Feb 18, 2009

Citations

310 F. App'x 678 (5th Cir. 2009)

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