Steven Johnson v. Warden Lewisburg USP , 694 F. App'x 60 ( 2017 )

BLD-288 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 17-1062
___________
STEVEN A. JOHNSON,
Appellant
v.
WARDEN LEWISBURG USP
____________________________________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(M.D. Pa. No. 1-16-cv-02317)
District Judge: Honorable John E. Jones, III
____________________________________
Submitted for Possible Summary Action
Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
June 22, 2017
Before: AMBRO, GREENAWAY, JR. and SCIRICA, Circuit Judges
(Opinion filed: August 4, 2017)
_________
OPINION*
_________
PER CURIAM
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
Steven Johnson, proceeding pro se, appeals an order of the United States District
Court for the Middle District of Pennsylvania dismissing his petition for a writ of habeas
corpus pursuant 28 U.S.C. § 2241. We will affirm the judgment of the District Court.
Johnson, a federal prisoner confined in the United States Penitentiary in
Lewisburg, Pennsylvania, alleged in his petition that he was scheduled to proceed to
Level 3 of the Special Management Unit program, that he completed the requirements to
advance, but that he was not advanced to this level. As relief, he sought advancement to
Level 3 or transfer to another prison to complete Level 3 and Level 4 in accordance with
the SMU program statement.
The District Court ruled that Johnson’s claim should be raised in a civil rights
action, not under § 2241, and dismissed his habeas petition without prejudice to any right
he may have to reassert his claim in such an action. This appeal followed.1
We have jurisdiction pursuant to 28 U.S.C. § 1291. Our standard of review is de
novo. Cardona v. Bledsoe, 681 F.3d 533, 535 (3d Cir. 2012).
Johnson was transferred to another institution after the District Court issued its
decision. To the extent Johnson’s petition challenges his lack of advancement in the
SMU program at the Lewisburg facility, his appeal is moot. To the extent Johnson’s
petition involves ongoing problems with his program level in the SMU, we agree with the
District Court that his claim is not cognizable under § 2241. Johnson’s claim does not
1
The District Court denied Johnson’s subsequent motion for reconsideration. That order
is not before us.
2
concern the execution of his sentence, as directed in his sentencing judgment, nor does he
contend that success on his claim would necessarily result in a change to the duration of
his sentence. See Cardona, 681 F.3d at 537 (affirming dismissal of § 2241 petition
claiming improper referral to SMU).
Because this appeal does not raise a substantial question, we will summarily
affirm the judgment of the District Court.
3