                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                 UNITED STATES COURT OF APPEALS                            FEB 23 1999

                                  TENTH CIRCUIT                     PATRICK FISHER
                                                                              Clerk



 JANE DOE, also known as
 John Andrew Cuoco,

          Petitioner-Appellant,

 v.                                                      No. 98-1252
                                                     (D.C. No. 98-D-271)
 JANET RENO; KATHLEEN M.                                 (Colorado)
 HAWK, BOP Director; JOHN M.
 HURLEY, Warden of ADX Florence,
 Colorado,

          Respondents-Appellees.




                         ORDER AND JUDGMENT *


Before SEYMOUR, Chief Judge, BALDOCK and HENRY, Circuit Judges.


      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The cause is

therefore ordered submitted without oral argument.

      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, or collateral estoppel. The 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.
      Jane Doe, a/k/a John A. Cuoco, a pro se transsexual federal prisoner,

brought this action under 28 U.S.C. § 2241, raising four claims. The district court

dismissed the first three claims on the ground that petitioner had an adequate and

effective remedy under 28 U.S.C. § 2255. The court dismissed the fourth claim

upon concluding that it was in essence a challenge to the conditions of

petitioner’s confinement cognizable under Bivens v. Six Unknown Named Fed.

Agents, 403 U.S. 388 (1971). Petitioner appeals. We grant petitioner’s motion

for leave to appeal in forma pauperis, and we affirm in part and reverse and

remand in part.

      In 1992, petitioner was convicted in the Southern District of New York on

four counts of robbing United States Post Offices and sentenced to 168 months in

prison. The conviction and sentence were affirmed on direct appeal in 1993. On

April 21, 1997, petitioner allegedly filed a section 2255 action in the Southern

District of New York, which was apparently still pending at the time the district

court here issued its ruling. In this section 2255 petition, petitioner allegedly

asserted four claims: that petitioner was improperly tried in absentia, that the

trial court committed evidentiary errors, that petitioner’s trial and appellate

counsel were ineffective, and that the government committed prosecutorial

misconduct. In the instant action under section 2241, petitioner claims that the

trial in absentia in the Southern District of New York was improper, that the court


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imposed an invalid sentence, that trial and appellate counsel were ineffective, and

that the current conditions of confinement are unconstitutional.

      As we have previously pointed out:

             A petition under 28 U.S.C. § 2241 attacks the execution of a
      sentence rather than its validity and must be filed in the district
      where the prisoner is confined. It is not an additional, alternative, or
      supplemental remedy to 28 U.S.C. § 2255.
             A 28 U.S.C. § 2255 petition attacks the legality of detention,
      and must be filed in the district that imposed the sentence. “The
      purpose of section 2255 is to provide a method of determining the
      validity of a judgment by the court which imposed the sentence,
      rather than by the court in the district where the prisoner is
      confined.”
             “The exclusive remedy for testing the validity of a judgment
      and sentence, unless it is inadequate or ineffective, is that provided
      for in 28 U.S.C. § 2255.”

Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir. 1996) (citations omitted).

      The district court held that the first three claims asserted in this proceeding

challenging the validity of petitioner’s conviction and sentence must be brought

under section 2255 in the district that imposed the sentence. We agree. We reject

petitioner’s argument that pursuing a section 2255 action in the sentencing district

is inadequate and ineffective because that district may well dismiss the

proceeding as untimely. “Failure to obtain relief under 2255 does not establish

that the remedy so provided is either inadequate or ineffective.” Id. (internal

quotations and citations omitted). Accordingly, we affirm the dismissal of the

first three claims.


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      The district court characterized the fourth claim as one challenging

petitioner’s conditions of confinement, Rec., Order of Dismissal, at 4-5, a

characterization that appears justified on the basis of the pleadings before us.

Although the court also recognized that such a claim is cognizable under Bivens,

the court nonetheless dismissed it. Id. at 6. Petitioner argues on appeal that the

court erred in dismissing the claim rather than allowing it to proceed as a Bivens

action, and we agree. Pro se pleadings are to be liberally construed. See Haines

v. Kerner, 404 U.S. 519, 520 (1072). Petitioner’s claim challenging the

conditions of confinement should have been construed as a complaint under

Bivens. See Wilwording v. Swenson, 404 U.S. 249, 251 (1971) (per curiam)

(construing dismissed habeas claims as section 1983 claims and remanding for

further proceedings). See also Royce v. Hahn, 151 F.3d 116, 118 (3d Cir. 1998);

Graham v. Broglin, 922 F.2d 379, 381-82 (7th Cir. 1991); Hall v. Flowers, No.

97-6200, 1998 WL 3461 (10th Cir. Jan. 6, 1998). We therefore remand this claim

to the district court for consideration of petitioner’s claim as a civil rights action

concerning the conditions of confinement.




                                           -4-
      We AFFIRM the dismissal of the first three claims. We REVERSE the

district court’s dismissal of the fourth claim and REMAND for further

proceedings.

                                     ENTERED FOR THE COURT

                                     Stephanie K. Seymour
                                     Chief Judge




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