                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                  August 19, 2014
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                    Clerk of Court
                                    TENTH CIRCUIT


 COREY BURGESS,

          Petitioner - Appellant,
                                                  Nos. 13-1101 & 13-1235
 v.                                            (D.C. No. 1:13-CV-00293-BNB)
                                                          (D. Colo.)
 CHARLES A. DANIELS,

          Respondent - Appellee.


                             ORDER AND JUDGMENT *


Before KELLY, HOLMES, and MATHESON, Circuit Judges.


      Appellant Corey Burgess, proceeding pro se, 1 appeals the denial of his

application for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. He

additionally appeals from the district court’s denial of his motion to proceed in


      *
             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 case 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      This order and judgment is not binding precedent, except under the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, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Federal Rule of Appellate
Procedure 32.1 and Tenth Circuit Rule 32.1.
      1
             Because Mr. Burgess is proceeding pro se, his filings are construed
liberally. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam); Garza v.
Davis, 596 F.3d 1198, 1201 n.2 (10th Cir. 2010).
that court in forma pauperis (“IFP”). Finally, Mr. Burgess seeks leave to proceed

IFP on appeal. For the reasons set forth below, we now affirm the district court’s

denial of Mr. Burgess’s habeas application, dismiss as moot Mr. Burgess’s appeal

relating to the denial of IFP status in the district court, and deny Mr. Burgess’s

request to proceed IFP on appeal.

                                          I

      Mr. Burgess is a prisoner in federal custody. At the time he filed his

habeas application, Mr. Burgess was incarcerated in the Special Management Unit

(“SMU”) at the United States Penitentiary in Florence, Colorado. Mr. Burgess

filed his habeas application pro se on February 4, 2013, and concurrently sought

leave from the district court to proceed IFP.

      The district court initially determined that Mr. Burgess’s motion to proceed

IFP was deficient because Mr. Burgess had failed to provide a certified copy of

his inmate trust fund account statement. See generally 28 U.S.C. § 1915(a)(2).

On February 19, 2013, a certified copy of Mr. Burgess’s inmate trust fund

account statement was filed with the district court, curing the original deficiency.

On the basis of this account statement, the district court determined that Mr.

Burgess possessed sufficient funds to pay the filing fees associated with his case,

and denied the motion to proceed IFP. Mr. Burgess filed a motion seeking

reconsideration of this decision but subsequently paid the filing fee while the

motion remained pending, and the district court accordingly denied the motion as

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moot. Although Mr. Burgess initially sought interlocutory review of the district

court’s denial of his motion to proceed IFP, we suspended briefing in that appeal

and instructed Mr. Burgess to file an additional brief addressing whether or not

his appeal was moot due to his having paid the filing fee. In light of Mr.

Burgess’s response, we ultimately consolidated Mr. Burgess’s appeal regarding

the denial of IFP status with his subsequently filed appeal from the district court’s

denial of his habeas application.

      Mr. Burgess’s habeas application stated three claims. First, Mr. Burgess

argued that the Bureau of Prisons (“BOP”) violated his constitutional rights and

his rights under 18 U.S.C. § 3624(c) by failing to submit him for pre-release

placement into a residential reentry center (“RRC”). 2 Second, he claimed that his

placement in the SMU further violated his rights under § 3624(c). Finally, Mr.

Burgess argued that the imposition of a two-year term of supervised release as an

aspect of his sentence violated the Double Jeopardy Clause of the Fifth


      2
             Section 3624(c) states that the BOP “shall, to the extent practicable,
ensure that a prisoner serving a term of imprisonment spends a portion of the final
months of that term . . . under conditions that will afford that prisoner a
reasonable opportunity to adjust to and prepare for reentry . . . into the
community.” The statute specifies that “[s]uch conditions may include a
community correctional facility,” and requires placement in a community
correctional facility to be determined on an individualized basis consistent with
the terms of 18 U.S.C. § 3621(b). An RRC is one type of community correctional
facility. See Garza, 596 F.3d at 1201 n.3 (“RRCs and CCCs are two words used
to describe the same animal . . . .”); 28 C.F.R. § 570.20 (“Community
confinement is defined as residence in . . . community correctional facilit[ies]
(including residential re-entry centers) . . . .”).

                                         -3-
Amendment. The district court dismissed Mr. Burgess’s first and third claims

without prejudice for failure to exhaust administrative remedies. 3 It dismissed his

second claim without prejudice as inappropriately raised in a habeas action,

finding that Mr. Burgess’s claims regarding his SMU placement in fact

challenged the conditions of his confinement, and thus should have been raised in

a separate civil action under Bivens v. Six Unknown Named Agents of Federal



      3
              Although the district court interpreted Mr. Burgess’s third claim
(challenging the supervised-release component of his sentence) as seeking relief
related to the execution of the sentence, and thus the court considered this claim
to be properly raised in a § 2241 suit, we observe that language in Mr. Burgess’s
application suggests he may in fact have meant to challenge the validity of his
sentence. See R. at 43 (Appl. for Writ of Habeas Corpus, filed Feb. 4, 2013)
(describing supervised release term as “a second/separate sentence [that] is
unwarranted, illegal, unlawful, unconscionable, unconstitutional, and
unprecedented” (capitalization altered)); id. at 45, 54 (asking the court, as relief,
to “toll supervised release”). Even if we were to construe Mr. Burgess’s third
claim as challenging the legal validity of his sentence rather than its execution,
the outcome would be the same—viz., we would not reach the merits of the claim
and, rather, would dismiss it on a threshold procedural ground. That is because a
federal prisoner seeking to challenge the validity of his sentence must do so in a
motion brought under 28 U.S.C. § 2255; ordinarily such validity-based actions
must be dismissed without prejudice when they are brought under § 2241. See,
e.g., Bradshaw v. Story, 86 F.3d 164, 166–67 (10th Cir. 1996). Because we in no
event would reach the merits of Mr. Burgess’s third claim, we need not explore
further which alternative threshold procedural ground of dismissal is more
appropriate. See, e.g., Niemi v. Lasshofer, 728 F.3d 1252, 1260 (10th Cir. 2013)
(“Because both this more modest state statutory standing question and any
possible ‘jurisdictional’ problem concerning the limits of the district court’s
authority to issue injunctive relief in this case amount to ‘threshold grounds’ for
resolving this appeal short of reaching its merits, we possess ‘leeway to choose
among’ them and to ‘take[ ] the less burdensome course.’” (alteration in original)
(quoting Sinochem Int’l Co. v. Malaysia Int’l Shipping Corp., 549 U.S. 422, 431,
436 (2007))).

                                         -4-
Bureau of Narcotics, 403 U.S. 388 (1971). In its order dismissing Mr. Burgess’s

habeas application, the district court denied Mr. Burgess’s motion for leave to

proceed IFP on appeal, stating that “any appeal from this order would not be

taken in good faith.” R. at 284 (Order of Dismissal, filed May 2, 2013).

                                         II

                                          A

      We begin by considering Mr. Burgess’s appeal from the district court’s

denial of IFP status. We need not address the merits of Mr. Burgess’s arguments

regarding whether the district court wrongfully denied him IFP status in the first

instance. This is because, irrespective of those arguments, Mr. Burgess’s request

for IFP status, and his appeal from the district court’s denial of that request, were

rendered moot when he voluntarily paid his filing fee on March 11, 2013. 4

Indeed, panels of this court have uniformly held that payment of filing fees causes

requests to proceed IFP to become moot. See, e.g., Schell v. Vaughn, 549 F.

App’x 788, 791 n.2 (10th Cir. 2013) (dismissing application to proceed IFP on

appeal as moot where appellate filing was paid); Perez-Castro v. Holder, 527 F.



      4
             Because Mr. Burgess’s notice of appeal indicates that he is
challenging the district court’s initial order denying IFP status (filed on February
22, 2013), we resolve this claim by dismissing this appellate claim for mootness.
To the extent that language in Mr. Burgess’s opening brief might be construed
instead as challenging the district court’s subsequent minute order denying on
mootness grounds Mr. Burgess’s motion for reconsideration (filed on March 12,
2013), we affirm that order for the same reasons.

                                         -5-
App’x 777, 781 (10th Cir. 2013) (same); Carbajal v. City & Cnty. of Denver, 502

F. App’x 715, 717 (10th Cir. 2012) (same); United States v. Dowell, 438 F. App’x

706, 710 (10th Cir. 2011) (same); United States v. Harris, 404 F. App’x 264, 267

(10th Cir. 2010) (same); Mitchell v. Oklahoma, 157 F. App’x 81, 84 (10th Cir.

2005) (same); see also Lipscomb v. Madigan, 221 F.2d 798, 798 (9th Cir. 1955)

(per curiam) (same). Although Mr. Burgess has not specified what relief he seeks

from this court, we might reasonably infer that he desires some form of refund to

allow him (presumably, in a less onerous fashion) to make partial payments over

time. However, Mr. Burgess has not offered us any authority to support such a

request—or, for that matter, to justify any other relief that we can reasonably

conceive of—nor have we found any. See Golden v. Kaiser, 1 F. App’x 841, 841

n.1 (10th Cir. 2001) (denying as moot appellant’s request for refund of previously

paid appellate filing fee and to be allowed to proceed IFP, noting that the

appellant “has not identified any precedent supporting such a request and this

court has not discovered any”). Therefore, we conclude that the district court

properly denied Mr. Burgess’s IFP request as moot.

                                          B

      We next consider the district court’s denial of Mr. Burgess’s habeas claims.

In reviewing the denial of a habeas petition under § 2241, “we review legal

questions de novo and factual findings for clear error.” Standifer v. Ledezma, 653

F.3d 1276, 1278 (10th Cir. 2011); see al-Marri v. Davis, 714 F.3d 1183, 1186

                                         -6-
(10th Cir.) (“When reviewing the denial of a habeas petition under § 2241, we

. . . accept [the district court’s] factual findings unless clearly erroneous.”), cert.

denied, --- U.S. ----, 134 S. Ct. 295 (2013); Butler v. Hamilton, 542 F.2d 835, 838

(10th Cir. 1976) (“The burden of demonstrating that findings are clearly

erroneous is a heavy one and appellants must point out specifically where the

findings of the trial court are clearly erroneous.”).

      With respect to Mr. Burgess’s first claim, we conclude that the district

court did not err in dismissing this claim on the basis that Mr. Burgess failed to

properly exhaust his administrative remedies. The district court found that in

each of Mr. Burgess’s two administrative remedies concerning this claim, he was

given the opportunity to correct defects with his submissions, but failed to do so.

See R. at 279–81 (finding that Mr. Burgess was allowed fifteen days to resubmit

appeals in administrative remedy numbers 695871 and 717106, but did so in

neither). In his briefs, Mr. Burgess makes various arguments and assertions

regarding these remedies, but none satisfy his heavy burden of demonstrating

clear error—indeed, Mr. Burgess nowhere challenges the basic factual finding of

the district court that he was directed to resubmit appeals in each case, but did not

do so, and our own review of the record is consistent with the district court’s

finding.

      Likewise, even assuming that Mr. Burgess could properly challenge his

supervised relief term in his § 2241 action, but see supra note 3, we conclude that

                                           -7-
the district court did not err in dismissing this claim for failure to exhaust

administrative remedies. The district court found that the Central Office rejected

Mr. Burgess’s appeal in administrative remedy number 709867 because his initial

appeal from the warden’s response had been untimely, and instructed Mr. Burgess

to resubmit his appeal “with a staff memorandum on BOP letterhead explaining

why the untimely appeal was not his fault,” pursuant to 28 C.F.R. § 542.14(b). R.

at 281–82. The district court found that Mr. Burgess did not do so. As with the

first claim, Mr. Burgess has not met his heavy burden of demonstrating that the

court’s findings were in error. And as with the first claim, our own review of the

record is consistent with the district court’s factual findings.

      As for Mr. Burgess’s second claim, challenging his placement in the SMU,

we conclude that the district court did not err by dismissing this claim as

inappropriately raised in a habeas action. The district court determined that this

claim in fact challenged Mr. Burgess’s conditions of confinement, and thus

should have been raised in a Bivens action. See Palma-Salazar v. Davis, 677 F.3d

1031, 1039 (10th Cir. 2012) (“[A federal prisoner’s] challenge to the conditions

of his confinement . . . must be brought pursuant to Bivens.”). The fact that Mr.

Burgess failed to address or contest this ruling in his opening brief is itself a

sufficient basis to affirm the district court’s order on this point. See, e.g.,

Bronson v. Swensen, 500 F.3d 1099, 1104 (10th Cir. 2007) (“[W]e routinely have

declined to consider arguments that are not raised, or are inadequately presented,

                                           -8-
in an appellant’s opening brief.”). But, even were we to consider arguments made

belatedly in Mr. Burgess’s reply brief, we would find that Mr. Burgess has failed

to offer any authority for the proposition that placement in the SMU is more than

simply a condition of confinement. Therefore, we ultimately conclude that the

district court did not err by dismissing Mr. Burgess’s second claim as

inappropriately raised in a habeas action.

                                        III

      For the foregoing reasons, we AFFIRM the district court’s denial of Mr.

Burgess’s habeas application and DISMISS as moot Mr. Burgess’s appeal from

the district court’s denial of IFP status. Because Mr. Burgess has raised no

“reasoned, nonfrivolous argument on the law and facts in support of the issues

raised on appeal,” McIntosh v. U.S. Parole Comm’n, 115 F.3d 809, 812 (10th Cir.

1997) (quoting DeBardeleben v. Quinlan, 937 F.2d 502, 505 (10th Cir. 1991))

(internal quotation marks omitted), we DENY his motion to proceed IFP on

appeal.



                                              Entered for the Court



                                              JEROME A. HOLMES
                                              Circuit Judge




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