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George Ivan Lopez v. John Wetzel

February 1, 2012


The opinion of the court was delivered by: Judge Arthur J. Schwab


Presently before the Court is a petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2241 by state prisoner George Ivan Lopez. For the reasons set forth below, the petition is summarily dismissed without service because it plainly appears that Lopez cannot pursue his claims in a habeas action. See 28 U.S.C. § 2243; Rule 4 of the Rules Governing Section 2254 Cases In the United States District Courts, applicable to § 2241 petitions through Rule 1(b).


Lopez was convicted in the Court of Common Pleas of Lehigh County of first-degree murder, robbery, theft, and receipt of stolen property and was sentenced to death.*fn1 He is incarcerated at the State Correctional Institution Greene ("SCI Greene") and confined in its "capital case unit," which is commonly referred to as "death row." In his habeas petition, Lopez claims that the conditions of his confinement are unconstitutional. See Petition, ECF No. 1, and Brief In Support For Habeas Corpus Pursuant to 28 U.S.C. § 2241, ECF No. 2, at 2 ("prison officials are unlawfully forcing the capital case prisoners to live under an unconstitutional administrative punitive and solitary placement policy" where "atypical significant hardship" is "forced upon" them solely because they have been sentenced to death). He challenges the size of his cell, the amount of time he must remain in it each day, the manner in which his food is served to him, the amount of time the lights are on, and the fact that there is "no congregation for religious or recreation purposes, . no drug and alcohol programs, no educational programs as provided in general population." Petition, ECF No. 1, at ¶ 13. As relief, he seeks an order from this Court directing the Respondents*fn2 to: (1) transfer him and all death-row inmates to units similar to general population units; (2) provide him with "immediate Psychological and Psychiatric treatment, as well as optometrist care for vision deterioration"; and (3) allow him 4-6 hours a week in the prison law library. Petition, ECF No. 1, at 7-8.

The petition must be dismissed because Lopez cannot challenge the conditions of his confinement in a habeas action. Instead, he must bring his claims in a civil rights action filed under 42 U.S.C. § 1983.*fn3 See generally Brian R. Means, FEDERAL HABEAS MANUAL § 1:34 (July 2011). See also McGee v. Martinez, 627 F.3d 933 (3d Cir. 2010); Williams, et al. v. Sec'y Pennsylvania Dep't of Corr., No. 10-2103, 2012 WL 208042 (3d Cir. Jan. 25, 2012).

Lopez maintains that he can challenge the conditions of his confinement under 28 U.S.C. § 2241 and in support he relies upon Woodall v. Federal Bureau of Prisons, 432 F.3d 235 (3d Cir. 2005). He is wrong.

First, 28 U.S.C. § 2241 is the habeas statute under which a federal prisoner (such as the petitioner in Woodall) must challenge the execution of his sentence. A state prisoner (such as Lopez) must rely on the habeas statute specific to state prisoners, 28 U.S.C. § 2254, in challenging the execution of his sentence.*fn4 Coady v. Vaughn, 251 F.3d 480, 484-86 (3d Cir. 2001).

Second, although Lopez contends that he is challenging the execution of his sentence in his habeas petition, he plainly is not. The Court of Appeals recently addressed the issue of what it means to challenge the "execution of a sentence" in McGee v. Martinez, 627 F.3d 933 (3d Cir. 2010). It explained:

The "core" habeas corpus action is a prisoner challenging the authority of the entity detaining him to do so, usually on the ground that his predicate sentence or conviction is improper or invalid. See Leamer v. Fauver, 288 F.3d 532, 542 (3d Cir. 2002). Title 28, section 2241 of the United States Code "confers habeas jurisdiction to hear the petition of a federal prisoner who is challenging not the validity but the execution of his sentence." Coady v. Vaughn, 251 F.3d 480, 485 (3d Cir. 2001). See also Woodall v. Fed. Bureau of Prisons, 432 F.3d 235, 241 (3d Cir. 2005). For instance, the habeas petitioner in Woodall challenged a Bureau of Prisons regulation that capped his end-of-sentence time in a halfway house at ten percent of his total sentence (there, eleven weeks); the judgment had specified that the petitioner would spend six months in such a facility. We observed that "[c]arrying out a sentence through detention in a [halfway house] is very different from carrying out a sentence in an ordinary penal institution," and therefore concluded that "Woodall's petition crosses the line beyond a challenge to, for example, a garden variety prison transfer." 432 F.3d at 243. That qualitative difference was sufficient to mark Woodall's challenge as one that went to the "execution" of his sentence, and that was thus cognizable under § 2241. Id.

In contrast, "when the challenge is to a condition of confinement such that a finding in plaintiff's favor would not alter his sentence or undo his conviction, [a civil rights] action under § 1983 [or Bivens] is appropriate." Leamer, 288 F.3d at 542. That is, the fact that a civil rights claim is filed by a prisoner rather than by an unincarcerated individual does not turn a § 1983 case or a Bivens action into a habeas petition. This is true even where the complained-of condition of confinement creates, as a secondary effect, the possibility that the plaintiff will serve a longer prison term than that to which he would otherwise have been subject. The petitioner in Leamer was a state prisoner whose behavioral problems had led to his placement on "Restricted Activities Program" status, which barred him from attending therapy sessions that were a condition precedent to his parole eligibility. We concluded that, even though a ruling in the petitioner's favor would have assisted him in obtaining parole eligibility and thus a shorter prison stint, the action was "aimed at a condition of his confinement." Id. at 543. Where the petition is couched as a challenge to the duration of a prisoner's sentence, we held, "[t]he operative test ... is not whether Learner would, if successful, be able to appear before the Parole Board. It is whether a favorable determination of Learner's challenge would necessarily imply that he would serve a shorter sentence...." Id. Taking Woodall and Leamer together, the question to be asked is whether granting the petition would "necessarily imply" a change to the fact, duration, or execution of the petitioner's sentence.

Id. at 935-36 (emphasis added).

McGee's federal sentence imposed a term of imprisonment and a $10,000 fine. The judgment imposing the sentence instructed that "[p]ayment [of the fine] is to be made from prison earnings at a rate of $20.00 per month[.]" Id. at 934. While at one federal correctional institution, McGee agreed to pay a minimum of $25 per quarter toward his fine pursuant to the IFRP, 28 C.F.R. §§ 545.10, 545.11. Id. at 934-35. He subsequently was transferred to another institution. There, he began on the same $25 per quarter IFRP plan for the payment of his fine, but after several months he was asked to increase the payments to $75 per quarter. He refused to agree to the increase and was placed on "IFRP refusal status," which, among other things, limited his commissary spending to $25 per month.

The issue before the Court of Appeals was whether McGee could maintain his suit in habeas or whether he had to re-file it as a civil rights action. Id. at 934. In holding that McGee could proceed in habeas, the court explained:

[T]he goal of the IFRP is to achieve compliance with a provision of each convict's criminal judgment -- namely, the timely payment of whatever sum the court has ordered him to pay. Through the IFRP, then, the Bureau of Prisons is "putting into effect" and "carrying out" the fine portion of McGee's sentence. The IFRP is therefore part of the Bureau's means of "executing" the sentence, and McGee's ...

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