Categories: Fifth Circuit Court of Appeals Opinions

SPENCER v. BRAGG, 310 Fed.Appx. 678 (5th Cir. 2009)

Fernando SPENCER, Petitioner-Appellant v. Warden M. Thomas BRAGG, Respondent-Appellee.

No. 07-51452 Conference Calendar.United States Court of Appeals, Fifth Circuit.
February 18, 2009.

Page 679

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

Fernando Spencer, Anthony, NM, pro se.

Eduardo R. Castillo, U.S. Attorney’s Office, Western District of Texas, El Paso, TX, for Respondent-Appellee.

Appeal from the United States District Court for the Western District of Texas, USDC No. 3:07-CV-160.

Before HIGGINBOTHAM, DENNIS, and PRADO, Circuit Judges.

PER CURIAM:[*]

[*] 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.

Fernando Spencer, federal prisoner #10714-180, appeals the district court’s dismissal of his 28 U.S.C. § 2241 petition without prejudice for lack of jurisdiction. The district court held that Spencer’s claims, which relate to his alleged exposure to asbestos, lack of proper medical treatment, retaliation, and the loss of legal notes, related to the conditions of his confinement. Because success on these claims would not result in Spencer’s accelerated release from prison, the district court held that they were not cognizable under § 2241.

Spencer argues that his application is proper under § 2241 because he is challenging the execution of his sentence and he seeks accelerated release from prison. He contends that the loss of his legal notes negatively impacted his 28 U.S.C. § 2255
proceeding, which he asserts could have resulted in his release from prison. Therefore, he argues that accelerated release is appropriate relief in this proceeding.

Where “a prisoner challenges an unconstitutional condition of confinement or prison procedure that affects the timing of his release from custody,” the proper vehicle is a civil rights action if a determination in the prisoner’s favor will not automatically result in his accelerated release. Carson v. Johnson, 112 F.3d 818, 820-21 (5th Cir. 1997). Even if Spencer could prove the claims he seeks to present, he has not shown a legal basis for obtaining accelerated release. Accordingly, we AFFIRM the district court’s judgment dismissing the § 2241 petition without prejudice for lack of jurisdiction.

Spencer’s motion for release pending appeal is DENIED.

jdjungle