Green v. Knowles

• Court: Court of Appeals for the Tenth Circuit
• Decided: August 3, 1998
• Docket: 98-1008
• Status: Unpublished

Opinion

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS AUG 3 1998 TENTH CIRCUIT PATRICK FISHER Clerk

DONALD G. GREEN,

Petitioner - Appellant, No. 98-1008 v. (D.C. No. 97-S-1281) (District of Colorado) JOEL KNOWLES,

Respondent - Appellee.

ORDER AND JUDGMENT*

Before PORFILIO, KELLY, and HENRY, Circuit Judges.

Donald G. Green appeals the dismissal of his petition under 28 U.S.C. § 2241. His

application for leave to appeal without payment of fees or costs is GRANTED and the

judgment of the district court is AFFIRMED.**

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. This court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. ** After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. The case is therefore ordered submitted on the briefs. Fed. R. App. P. 34(a): 10th Cir. R. 34.1.9. Mr. Green pled guilty to the crime of murder in the second degree in a court of the

State of New York and was sentenced to prison for a term of twenty-five years to life.

While in state prison, he committed a number of federal offenses for which he was

indicted in federal court in New York. For the purpose of trial, Mr. Green was transferred

to federal custody and placed in a federal institution pending trial. Upon conviction of the

federal offenses, he was sentenced to a mandatory period of life. The court specified that

sentence was to commence after service of Mr. Green’s state sentence.

Meanwhile, the Department of Correctional Services of the State of New York

requested the Federal Bureau of Prisons to accept Mr. Green for boarding in the federal

corrections system under the terms of an intergovernmental agreement. The Bureau of

Prisons accepted the request and designated Mr. Green for placement in the United States

Penitentiary, Leavenworth, Kansas where he resided for approximately twenty-seven

months. He was then transferred to United States Penitentiary, High Security, Florence,

Colorado where he presently resides.

Following transfer to Florence, Mr. Green filed his § 2241 petition in the federal

court in Colorado alleging he was illegally transferred from state to federal custody

because he was not returned to the custody of the state of New York following his federal

trial. He therefore asked the federal court in Colorado “to return the petitioner back into

New York States [sic] Custody.” Mr. Green also asserted he was denied due process

because he was never granted a custodial hearing before his transfer.

-2- After reviewing the report and recommendations of the magistrate judge to whom

the case was referred, and following its own independent review, the district court

dismissed the petition. The court held Mr. Green’s first claim of illegal transfer to federal

jurisdiction is not cognizable under § 2241 because he was not seeking release from

custody, citing Prieser v. Rodriguez, 411 U.S. 475, 484 (1973) and McCarthy v.

Henman, No. 91-3197, 1991 WL 197168 (10th Cir. unpublished.) Moreover, the court

observed, Mr. Green admitted he was only challenging the place of his confinement, not

its duration. Further the court held that Mr. Green had not exhausted the administrative

remedies available to him to test his transfer to federal custody.

Appealing that judgment, Mr. Green argues to us, as he did in the district court,

that he should have been returned to the state following his federal conviction.

Nonetheless, his real grievance is that his confinement in a federal institution has

inhibited efforts to challenge his state conviction because there are no New York law

books available to him at Florence. This grievance he converts into a Six Amendment

claim of deprivation of meaningful access to the court in New York.

We review de novo a district court’s dismissal for lack of subject matter

jurisdiction. Owen v. Magaw, 122 F.3d 1350, 1352 (10th Cir. 1997). We review the

district court’s dismissal of Mr. Green’s second claim on exhaustion grounds for abuse of

discretion. Massengale v. Board of Examiners, 30 F.3d 1325, 1328 (10th Cir. 1994).

-3- Our de novo review leads us to the conclusion the district court did not err in

determining Mr. Green had not properly invoked the subject matter jurisdiction of the

court. Preiser, 411 U.S. 500; McCarthy v. Henman, 91-3197, 1991 WL 197168 at *1

(10th Cir. Oct. 4, 1991). The gravamen of Mr. Green’s petition is not his release from

custody, but his transfer to a state institution in New York so he can, to his satisfaction,

pursue pro se litigation in that state. The remedies available under §2441 will not permit

him that relief.

The district court also refused to review Mr. Green’s Sixth Amendment claim

based upon the complaint that U.S.P. Florence will not provide him New York law books

because he failed to exhaust the institutional remedies available to him. The Bureau of

Prisons provides inmates with a multi level system of adjudication of institutional

complaints. The process begins with the institutional staff and progresses though the

Regional Director of the Bureau and finally to General Counsel. The record indicates Mr.

Green launched in inquiry over the unavailability of New York legal materials, but does

not disclose satisfactory evidence of his pursuit of that inquiry to either the Regional

Director or General Counsel. We see no abuse of discretion on the part of the district

court.

AFFIRMED.

-4- ENTERED FOR THE COURT

John C. Porfilio Circuit Judge

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