                                                        NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 10-3297
                                       ___________

                                    DAVID MEYERS,
                                                        Appellant

                                             v.

                              WARDEN R. MARTINEZ
                       ____________________________________

                     On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                                 (D.C. Civil No. 10-1151)
                        District Judge: Honorable John E. Jones
                      ____________________________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   March 21, 2011

           Before: AMBRO, HARDIMAN and STAPLETON, Circuit Judges

                              (Opinion filed: April 12, 2011)
                                       _________

                                        OPINION
                                        _________

PER CURIAM

       David Meyers, a federal inmate currently incarcerated at USP-Allenwood in

Pennsylvania, seeks habeas corpus relief under 28 U.S.C. § 2241. Because we perceive

no errors in the District Court’s resolution of Meyers’ claims, we will affirm its judgment.
       Meyers is serving a prison sentence of 63 months, imposed on December 17, 2009,

following his guilty plea in the United States District Court for the Eastern District of

Virginia to one count of being a felon in possession of a firearm.1 Pursuant to a federal

detainer, Meyers was held in custody on the crime of conviction between February 16,

2007, and the date of his sentencing. Immediately preceding that period, Meyers had

been held in state custody for 75 days (between December 1, 2006, and February 15,

2007) on a state charge that was eventually nolle prossed. All told, then, Meyers spent

1,112 days in custody prior to sentencing.2 Accordingly, the BOP set Meyers’ projected

release date, after factoring in good time credits, at July 8, 2011. The BOP set the date of

his eligibility for home detention at January 8, 2011.

       Meyers’ § 2241 petition, filed in May 2010, contained ten claims, which the

District Court ably summarized as follows:

       1) Respondent directed BOP staff to place Meyers in the General Population where
          an inmate was waiting to kill him . . . ;

       2) the BOP failed to properly credit the time Meyers spent confined in the Federal
          Detention Center (“FDC”) Philadelphia . . . ;

       3) the BOP failed to follow the direction of the sentencing court to place Petitioner
          in a federal medical center to receive psychiatric treatment . . . ;


       1
         The United States Court of Appeals for the Fourth Circuit granted the
Government’s motion to dismiss Meyers’ direct appeal, based on the appellate waiver
contained in the plea agreement, by order entered August 18, 2010. Meyers’ motion to
vacate his sentence, pursuant to 28 U.S.C. § 2255, is currently pending in the Eastern
District of Virginia.
       2
           2008 was a leap year.
                                              2
      4) there is no Mental Health Unit (“MHU”) at USP Allenwood . . . ;

      5) Respondent refuses to stop performing PPD skin tests on Petitioner . . . ;

      6) Respondent has informed inmates . . . that Petitioner is an informant . . . ;

      7) the BOP . . . is denying him [home] release and has untruthfully scored his
         security classification level . . . ;

      8) Petitioner’s projected release date and home detention eligibility date are
         incorrect . . . ;

      9) on February 23, 2010, Respondent allowed an inmate to be placed in
         Petitioner’s cell, and the inmate stabbed, cut, and sexually assaulted Petitioner . .
         . ; and

      10) on April 24, 2010, Respondent again allowed an inmate to be placed in
          Petitioner’s cell, and the inmate held Petitioner hostage . . . .

(DC dkt #5.) The District Court summarily dismissed without prejudice six of the ten

claims in the petition (numbers 1, 4-6, 9 and 10) because those claims challenged the

conditions of Meyers’ confinement, and thus were not properly raised in habeas corpus

proceedings. The warden of USP-Allenwood, R. Martinez, was then ordered to respond

to Meyers’ habeas petition. By order entered July 9, 2010, the District Court denied the

remaining claims in Meyers’ habeas petition (numbers 2, 3, 7, and 8), concluding that

they were both unexhausted and without merit. Meyers timely appealed.

       The District Court had subject matter jurisdiction under 28 U.S.C. § 2241(a), and

our jurisdiction arises under 28 U.S.C. §§ 1291 and 2253(a). A certificate of

appealability is not required for Meyers’ appeal. See Burkey v. Marberry, 556 F.3d 142,


                                             3
146 (3d Cir. 2009). We exercise plenary review of the District Court’s denial of habeas

corpus relief. McGee v. Martinez, 627 F.3d 933, 935 n.2 (3d Cir. 2010). The District

Court’s factual findings are reviewed for clear error. Vega v. United States, 493 F.3d

310, 314 (3d Cir. 2007).

       The District Court properly dismissed Meyers’ conditions of confinement claims

without prejudice to Meyers’ ability to pursue those claims in a civil rights action under

42 U.S.C. § 1983. See McGee, 627 F.3d at 936 (“the fact that a civil rights claim is filed

by a prisoner rather than by an unincarcerated individual does not turn a § 1983 case or a

Bivens action into a habeas petition . . . even where the complained-of condition of

confinement creates, as a secondary effect, the possibility that the plaintiff will serve a

longer prison term than that to which he would otherwise have been subject.”). We also

agree with the District Court that Meyers failed to exhaust his administrative remedies

with respect to the other four claims in the habeas petition. See Gambino v. Morris, 134

F.3d 156, 171 (3d Cir. 1998) (“Ordinarily, federal prisoners are required to exhaust their

administrative remedies prior to seeking a writ of habeas corpus pursuant to 28 U.S.C.

§ 2241.”). It was Meyers’ burden, see Coady v. Vaughn, 251 F.3d 480, 488 (3d Cir.

2001), to prove that he exhausted his administrative remedies—here, completion of the

BOP’s multi-tier Administrative Remedy Program—and he failed to do so.3

       Furthermore, we agree with the District Court that Meyers’ habeas claims related


       3
           Specifically, by his own records, Meyers failed to pursue any denied grievance
                                              4
to the BOP’s security classification and sentence calculations are without merit, for

substantially the reasons given in the District Court’s opinion. Importantly, Meyers has

failed to demonstrate on appeal that any of the District Court’s factual findings are clearly

erroneous. Finally, while Meyers’ third claim—that the BOP is defying a court order that

he “receive mental health services at a Federal Medical Center (DC dkt #1, pg. 3)—also

lacks merit, we note that the Eastern District of Virginia did order Meyers to undergo

psychiatric evaluations at FMC Butner from November 2007 to March 2008, and then

again from September 2008 to March 2009, during the pendency of the underlying

criminal proceedings. The “Special Conditions of Supervision” section of Meyers’

criminal judgment states that, “[w]hile on supervised release, pursuant to this Judgment . .

. [t]he defendant shall participate in a program approved by the Probation Office for

mental health treatment.” (DC dkt #7, Attachment 3, pg. 4.) On appeal, Warden

Martinez states that “[a]ny mental health treatment Meyers receives aside from that is

squarely within the discretion of the BOP.” (Resp. Br. at 13.) To the extent feasible, we

encourage the BOP to exercise that discretion.

       The judgment of the District Court will be affirmed.




beyond the Regional Office level. (DC dkt #11.)
                                              5
