                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                           July 12, 2007
                                 TENTH CIRCUIT                         Elisabeth A. Shumaker
                                                                           Clerk of Court


 M ICHAEL ANTONELLI,

               Plaintiff-Appellant,                         No. 06-6310
          v.                                           (W .D. of Oklahoma)
 JOE KEFFER, W arden,                              (D.C. No. CIV-06-0628-HE)

               Defendant-Appellee.




                                       OR DER


Before H E N RY, T YM KOV IC H, and HO LM ES, Circuit Judges. *




      M ichael C. Antonelli appeals the denial of a Petition for W rit of Habeas

Corpus brought pursuant to 28 U.S.C. § 2241 as w ell the denial of his request to

proceed in form a pauperis. Since M r. Antonelli filed his complaint without the

benefit of counsel, we liberally construe his claims. Hall v. Bellmon, 935 F.2d

1106, 1110 (10th Cir. 1991). Even after carefully reviewing the record, M r.

Antonelli’s petition is difficult to interpret, but we read it as alleging that his

transfer from a medium security federal prison to a maximum security federal


      *
       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 F ED . R. A PP . P. 34(a)(2); 10 TH C IR . R. 34.1(G). The case is
therefore ordered submitted without oral argument.
facility constituted an improper execution of his sentence. In addition, M r.

Antonelli appears to seek relief from his conditions of confinement in the

maximum security facility where he currently resides.

      To begin, we do not have jurisdiction over M r. Antonelli’s challenge to the

execution of his sentence because he is imprisoned in Kentucky, and “[a] petition

under 28 U.S.C. § 2241 . . . must be filed in the district where the prisoner is

confined.” Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir. 1996). In addition,

we hold that inasmuch as M r. A ntonelli attacks the conditions of his confinement,

§ 2241 is not the proper vehicle for such a challenge.

      B ecause M r. A ntonelli’s petition fails to state a cognizable claim we

dismiss the appeal without exercising jurisdiction, and we deny his request to

proceed in form a pauperis. See 28 U.S.C. § 1915(e)(2)(B) (depriving federal

courts of jurisdiction . . . where the prisoner “fails to state a claim on which relief

may be granted”).

                                 I. BACKGROUND

      M r. Antonelli is a federal prisoner who filed the instant petition while he

was briefly incarcerated at the Federal Transfer Center (FTC) in Oklahoma City,

Oklahoma in 2005. In addition to this petition, M r. Antonelli filed another §

2241 petition while he was confined in a federal prison in El Reno, Oklahoma (El

Reno petition). M r. Antonelli’s stint in El Reno ended on February 3, 2005 when

he was transferred to a facility in Forrest City, Arkansas to undergo a 500-hour

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Residential Drug Abuse Program, a condition of his sentence. On M ay 15, he was

moved from Forrest City to the FTC. He filed this petition before he was

transferred to the maximum security facility in Inez (Big Sandy), Kentucky where

he currently resides.

      In this § 2241 petition, M r. Antonelli complains that his transfer from

Forrest City to Big Sandy, which he avers is “a more dangerous prison,” A plt’s

Br. at 5, constituted an “improper execution of his sentence.” Aplt’s Br. at 1.

He maintains that prison officials at Forrest City perpetrated a “pattern of

harassment [that] developed into a conspiracy to harass, inimidate [sic.], degrade,

demean, embarras [sic.] and infringe upon [his] rights” in retaliation for “having

exercised his first amendment [sic.] rights 2 to petition government for redress.”

Id. at 2. M r. Antonelli alleges that the perpetrators of this alleged retaliatory

conspiracy “inappropriately and fictitiously doctored [his security/custody

classification status] in order to unjustly and unfairly effectuate a transfer from

Forrest City M edium to a higher security/custody facility at [Big Sandy].”

                                  II. D ISC USSIO N

                                  A. J URISDICTION

      “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



      2
      The exercise of First Amendment rights to which M r. Antonelli refers is
presumably the El Reno petition.

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confined.” Caravalho v. Pugh, 177 F.3d 1177, 1178 (1999) (internal citation

omitted). Since M r. Antonelli is imprisoned in Kentucky, we do not have

jurisdiction over the instant petition and therefore dismiss M r. A ntonelli’s claim.

      Alternatively, in the event that we have misconstrued M r. Antonelli’s

largely incoherent pleadings and appeal, we hold that M r. Antonelli has failed to

state a claim inasmuch as he has challenged the conditions of his confinement. In

order to state a claim under § 2241, a petitioner must challenge the fact of, and

not merely the conditions of confinement. See M cIntosh v. United States Parole

Com’n, 115 F.3d 809, 812 (10th Cir. 1997) (noting that a proper § 2241 petition

challenges “the fact or duration of a prisoner’s confinement and seeks the remedy

of immediate release or a shortened period of confinement. In contrast, a civil

rights action . . . attacks the conditions of the prisoner’s confinement and requests

monetary compensation for such conditions.”) (internal citation omitted). “[I]f a

favorable resolution of the action would not automatically entitle the prisoner to

release, the proper vehicle is 42 U.S.C. § 1983.” Id.

      In Boyce v. Ashcroft, 251 F.3d 911, 918 (10th Cir. 2001), judgment

vacated on rehearing, 268 F.3d 953 (10th Cir. 2001), we applied the precedent

cited above to a case with facts strikingly similar to the one at bar. As in this

case, in Boyce, a federal prisoner alleged that he had been transferred from a

medium to a maximum security facility in retaliation for exercising his First

Amendment rights. Reasoning that “the traditional function of the writ is to

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secure release from illegal custody,” Boyce, 251 F.3d at 917, this court held that

“[a § 2241 petition] may not be used to challenge a prisoner’s placement within a

given jurisdictional entity, such as the federal prison system.” Id. at 918.

      Although we vacated our holding in Boyce, we did so because M r. Boyce’s

transfer to the medium security facility he requested mooted the case. Boyce’s

reasoning remains persuasive and solidly supported by precedent. See M cIntosh,

115 F.3d at 811-12. (“[A]lthough a § 2241 attack on the execution of a sentence

may challenge some matters that occur at prison, such as deprivation of good-time

credits and other prison disciplinary matters, this does not make § 2241 actions

like condition of confinement law suits, which are brought under civil rights

laws.”) (internal citations omitted).

      In the instant case, like the petitioner in Boyce, M r. Antonelli’s challenge

to the execution of his sentence focuses on his transfer from a medium to a

maximum security facility. He does not allege that M r. Keffer or any other prison

official has increased his sentence or deprived him of any good-time credit. Thus,

even liberally construing M r. Antonelli’s claims, he has failed to allege a valid

factual basis for a § 2241 petition. W e therefore agree with the magistrate judge

that M r. Antonelli’s suit should be filed under Bivens v. Six Unknown Named

Agents of the Federal Bureau of N arcotics, 403 U.S. 388 (1971).

                   B. T HREE S TRIKES U NDER 28 U.S.C. § 1915(g)

      As the magistrate judge observed, this marks M r. Antonelli’s ninth § 2241

                                          5
petition in a seventeen-month period. M r. Antonelli’s eight § 2241 petitions to

the Eastern District of Arkansas prompted the court there to declare that “[w]ith

his repetitive, duplicative, frivolous, and abusive filings, [M r. Antonelli] has

caused the judges of this Court to expend a substantial amount of time that

otherwise could have been spent on petitions filed by prisoners who do not abuse

the judicial process.” Antonelli v. Sanders, No. 2:06cv00117, 2006 W L 1489206,

at *8 (E.D. Ark. M ay 26, 2006). M r. Antonelli’s flurry of frivolous petitions to

the Arkansas district court is merely a tributary in the river of meritless litigation

he has initiated as a prisoner in the federal system. See id. at *4 n.2 (noting that

M r. Antonelli’s frequent filings in the D.C. Circuit “led to an unprecedented

series of court rulings dismissing Antonelli’s lawsuits, with prejudice, as a

sanction for his misrepresentations” that the court characterized as “fraud”)

(internal quotations omitted); id. at *8 n.5 (observing that M r. Antonelli filed as

many as “94 actions at the district court level” in the Eastern District of Texas,

“many of which were dismissed as frivolous or for failure to state a claim”).

      As a result of M r. Antonelli’s frivolous civil rights filings, it is clear that

M r. Antonelli surpassed the three-strike limit under 28 U.S.C. § 1915(g)

sometime ago. See Antonelli v. Hannah, 210 F.3d 374, at *1 (7th Cir. 2000)

(noting that a district court had dismissed an action because M r. Antonelli had

“already acquired three strikes”). Thus, we remind M r. Antonelli that “[i]n no

event shall [he] bring a civil action or appeal a judgment in a civil action or

                                            6
proceeding under [§ 1915] . . . unless [he] is under imminent danger of serious

physical injury.” 28 U.S.C. § 1915(g).

                               III. C ON CLU SIO N

      For the foregoing reasons, we DENY M r. Antonelli’s request to proceed in

forma pauperis and DISM ISS the petition.

                                             Entered for the Court,



                                             Elisabeth Shumaker
                                             Clerk of Court




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