Alexander, Sr. v. Daniels ( 2011 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
March 18, 2011
TENTH CIRCUIT
Elisabeth A. Shumaker
Clerk of Court
TOMMY ALEXANDER, SR.,
Petitioner - Appellant,
No. 10-1571
v. (D.C. No. 1:10-CV-02728-ZLW)
(D. Colorado)
C. DANIELS, Warden,
Respondent - Appellee.
ORDER AND JUDGMENT *
Before BRISCOE, Chief Judge, ANDERSON, and MURPHY, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination
of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
This matter is before the court on Tommy Alexander’s appeal from the
district court’s dismissal of his 28 U.S.C. § 2241 habeas corpus petition. Because
*
This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
Alexander is a federal prisoner, he does not need a certificate of appealability to
appeal the denial of his § 2241 petition. Bledsoe v. United States, 384 F.3d 1232,
1235 (10th Cir. 2004).
Alexander is currently incarcerated at the United States Penitentiary at
Florence, Colorado. In 2004, while incarcerated in a federal prison in Beaumont,
Texas, Alexander was charged with possessing a weapon. A prison disciplinary
hearing was conducted on March 23, 2004, and Alexander was found guilty of the
charge. He was sentenced to fifteen days in segregation and he lost visitation,
telephone, and commissary privileges for ninety days.
On October 13, 2005, Alexander filed a petition in the United States
District Court for the Eastern District of Texas pursuant to 28 U.S.C. § 2241,
raising due process claims associated with the prison disciplinary hearing. The
petition was transferred to the United States District Court for the Western
District of Virginia because Alexander was incarcerated in Jonesville, Virginia, at
the time it was filed. See Haugh v. Booker, 210 F.3d 1147, 1149 (10th Cir. 2000)
(“A petition under 28 U.S.C. § 2241 . . . must be filed in the district where the
prisoner is confined.” (quotation omitted)). The district court denied relief and
the Fourth Circuit Court of Appeals affirmed that decision. Alexander v. Miles,
192 F. App’x 208, 209 (4th Cir. 2006).
Alexander filed the instant § 2241 petition in the United States District
Court for the District of Colorado on November 8, 2010. In this second petition,
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Alexander raises the same due process claims he previously raised in his 2005
petition. Although Alexander has completed the sentence imposed in 2004,
Alexander alleges the conviction precludes him from obtaining prison work
assignments and being transferred to a facility closer to his family.
“A necessary predicate for the granting of federal habeas relief . . . is a
determination by the federal court that [petitioner’s] custody violates the
Constitution, laws, or treaties of the United States.” Rose v. Hodges, 423 U.S. 19,
21 (1975). The Colorado district court denied the petition, concluding
Alexander’s claims did not implicate any liberty interest protected by the Due
Process Clause. Sandin v. Conner, 515 U.S. 472, 484 (1995) (holding § 2241
petitioner must demonstrate the complained-of action imposed an “atypical and
significant hardship . . . in relation to the ordinary incidents of prison life”); see
also Montez v. McKinna, 208 F.3d 862, 866 (10th Cir. 2000) (“[T]here is no
federal constitutional right to incarceration in any particular prison or portion of a
prison.”); Penrod v. Zavaras, 94 F.3d 1399, 1407 (10th Cir. 1996) (holding
prisoners have no liberty interest in prison employment). The district court also
referenced the fact that Alexander has previously litigated his claim in the
Western District of Virginia.
Upon review of Alexander’s appellate brief and de novo review of the
entire record on appeal, this court affirms the dismissal of Alexander’s § 2241
petition for substantially the reasons set forth in the district court’s Order of
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Dismissal dated December 1, 2010. Alexander’s motion to proceed in forma
pauperis on appeal is denied.
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
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