                                                                         F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit

                                                                         AUG 9 2001
                    UNITED STATES COURT OF APPEALS

                                  TENTH CIRCUIT                       PATRICK FISHER
                                                                             Clerk


 HERIBERTO HUERTA,

               Petitioner - Appellant,                  No. 00-1255
          v.                                           (D. Colorado)
 KATHLEEN HAWK-SAWYER,                              (D.C. No. 99-Z-32)
 Director, United States Bureau of
 Prisons; JOHN M. HURLEY, Warden,
 United States Penitentiary,
 Administrative Maximum Facility,
 Florence, Colorado,

               Respondents - Appellees.


                             ORDER AND JUDGMENT         *




Before HENRY , BRISCOE , and MURPHY , 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        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and 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.
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.

         Heriberto Huerta appeals the district court’s dismissal of his Petition for

Writ of Habeas Corpus, which he brought pursuant to 28 U.S.C. § 2241. Mr.

Huerta is serving a life sentence for conspiracy and distribution of controlled

substances, and is presently being held in administrative segregation at the

maximum security prison in Florence, Colorado. Because we conclude that §

2241 is the improper vehicle for Mr. Huerta’s grievances, we affirm the district

court.

         Mr. Huerta’s § 2241 action argues that both his transfer to Florence and his

segregated confinement were unconstitutional. In dismissing the action, the

district court ruled that it amounted to a challenge to the conditions of Mr.

Huerta’s confinement, rather than the execution of his sentence. It stated that

although Mr. Huerta contended “that it is not the denial of . . . privileges, but the

[allegedly unconstitutional] manner in which they were denied” for which he was

seeking relief, “it is apparent that the granting of his petition would simply alter

the current conditions of his confinement and have no effect on his sentence.”

Dist. Ct. Order, filed May 10, 2000 [hereinafter referred to as “Dist. Ct. Order”]

at 2. Citing McIntosh v. United States Parole Comm’n       , 115 F.3d 809, 811 (10th




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Cir. 1997), the court ruled that “it is clear that this type of relief may not be

granted through a § 2241 petition.” Dist. Ct. Order at 2.

       On appeal, Mr. Huerta maintains that “[c]learly habeas corpus relief is

available for attacking constitutional questions of how a sentence is being

served.” Aplt’s Br. at 24. In support of this proposition, he cites      In Re: Medley ,

134 U.S. 160 (1890), and     Hutto v. Finney , 437 U.S. 678 (1978). Neither case is

persuasive on this point . Hutto does suggest that conditions of confinement may

be unconstitutional, but it was based on a 42 U.S.C. § 1983 civil rights action,

and makes no mention of habeas petitions. As for        Medley , Mr. Huerta cites no

particular language within that century-old case. This may be because the         Medley

Court made only one statement that seems relevant to Mr. Huerta’s argument, and

that statement tells us that “under the writ of habeas corpus we cannot do

anything else than discharge the prisoner from the wrongful confinement in the

penitentiary under the statute of Colorado invalid as to this case.”      Medley , 134

U.S. at 173.

       It is true that a § 2241 action may sometimes “challenge some matters that

occur at prison, such as deprivation of good-time credits and other prison

disciplinary matters.”   McIntosh , 115 F.3d at 811. It is also true that in   Preiser v.

Rodriguez , 411 U.S. 475, 484 (1973), the Supreme Court reserved judgment on

the question of whether challenges to prison conditions may be brought under §


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2241. However, this circuit has declared that § 2241 is to be used in cases

challenging the fact or duration of federal custody, and not in cases merely

challenging prison conditions.     See McIntosh , 115 F.3d at 812. Here, Mr.

Huerta’s own habeas petition states that his action is a challenge to the conditions

of his confinement, not the ultimate fact that he is confined. Petition for Writ of

Habeas Corpus at 2.   1
                          Moreover, Mr. Huerta is serving a life sentence. He has

made no allegation that his action, even if successful, would result in any direct

change in the duration of his confinement.

       For the foregoing reasons, we agree with the magistrate judge that the

correct vehicle for Mr. Huerta’s complaint is a civil rights action under      Bivens v.

Six Unknown Named Agents of the Federal Bureau of Narcotics             , 403 U.S. 388

(1971). Report and Recommendation of United States Magistrate Judge, filed




       1
         We acknowledge that in Montez v. McKinna, 208 F.3d 862 (10th Cir.
2000), we held that an attack “on where [the petitioner’s] sentence will be served
. . . seems to fit . . . under the rubric of § 2241.” Id. at 865. In a sense, Mr.
Huerta’s cause of action is a challenge to where his sentence will be served, as he
asks for a transfer to a “true general population unit of an approved correctional
facility.” Petition for Writ of Habeas Corpus at 30 (emphasis omitted). But
Montez is distinguishable from this case; in Montez, the petitioner alleged that
the State of Wyoming could not constitutionally confine him in a privately run
prison in Colorado. He did not argue, as Mr. Huerta does, that he was being
treated in an unconstitutional manner in the course of an otherwise lawful
confinement.


                                             -4-
Mar. 16, 2000, at 6. Accordingly, we AFFIRM the district court’s dismissal of

this § 2241 petition.



                                             Entered for the Court,


                                             Robert H. Henry
                                             Circuit Judge




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