Juan Cervante v. United States ( 2010 )

Case: 10-50248 Document: 00511298476 Page: 1 Date Filed: 11/18/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 18, 2010
No. 10-50248
Summary Calendar Lyle W. Cayce
Clerk
JUAN MANUEL CERVANTE,
Petitioner-Appellant
v.
UNITED STATES OF AMERICA,
Respondent-Appellee
Appeal from the United States District Court
for the Western District of Texas
USDC No. 4:10-CV-15
Before HIGGINBOTHAM, SMITH, and HAYNES, Circuit Judges.
PER CURIAM:*
Juan Manuel Cervante, federal prisoner # 36300-177, filed in the district
court a petition under 28 U.S.C. § 2241. He argued that he has been deprived
of benefits provided to other prisoners in light of his immigration status,
including a possible one-year reduction of his sentence after completion of a drug
treatment program under 18 U.S.C. § 3621(e) and placement in a less restrictive
facility at the end of his sentence pursuant to 18 U.S.C. § 3624(c). The district
court dismissed Cervante’s habeas petition for lack of subject matter jurisdiction,
*
Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
Case: 10-50248 Document: 00511298476 Page: 2 Date Filed: 11/18/2010
No. 10-50248
concluding that his claims involved the conditions of his confinement and thus
should be presented in a civil rights action. Cervante now seeks leave to proceed
in forma pauperis (IFP) on appeal in order to challenge the district court’s
adverse ruling. We grant the motion for leave to proceed IFP. Additionally,
given our determination of the subject-matter jurisdiction question, we dispense
with further briefing of the merits of Cervante’s claims.
Cervante’s challenges to his inability to receive a one-year sentence
reduction after completion of a drug treatment program and to his ineligibility
for placement in a halfway house or other less restrictive confinement designed
to prepare a prisoner for reentry into society affect the execution of his sentence.
Thus, such claims may be raised under § 2241. See Rublee v. Fleming, 160 F.3d
213, 214-17 (5th Cir. 1998); United States v. Cleto, 956 F.2d 83, 84 (5th Cir.
1992). As a result, we vacate and remand to the district court for further
proceedings.
IFP GRANTED; VACATED AND REMANDED.
2