          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                   Fifth Circuit

                                                FILED
                                                              February 18, 2009
                                No. 07-51452
                             Conference Calendar            Charles R. Fulbruge III
                                                                    Clerk

FERNANDO SPENCER

                                           Petitioner-Appellant

v.

WARDEN M THOMAS BRAGG

                                           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:*
      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




      *
      Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
                                  No. 07-51452

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.




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