Filed: Sep. 10, 2020
Latest Update: Sep. 10, 2020
Summary: FILED United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS September 10, 2020 FOR THE TENTH CIRCUIT Christopher M. Wolpert Clerk of Court _ GREGORY D. CROSBY, a/k/a Gregory D. Cosby, Petitioner - Appellant, No. 20-1221 v. (D.C. No. 1:19-CV-03199-WJM) (D. Colo.) BILL TRUE, Warden, Respondent - Appellee. _ ORDER AND JUDGMENT* _ Before BRISCOE, BALDOCK, and CARSON, Circuit Judges. _ Petitioner Gregory D. Crosby, a federal prisoner proceeding pro se, appeals the district court
Summary: FILED United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS September 10, 2020 FOR THE TENTH CIRCUIT Christopher M. Wolpert Clerk of Court _ GREGORY D. CROSBY, a/k/a Gregory D. Cosby, Petitioner - Appellant, No. 20-1221 v. (D.C. No. 1:19-CV-03199-WJM) (D. Colo.) BILL TRUE, Warden, Respondent - Appellee. _ ORDER AND JUDGMENT* _ Before BRISCOE, BALDOCK, and CARSON, Circuit Judges. _ Petitioner Gregory D. Crosby, a federal prisoner proceeding pro se, appeals the district court’..
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FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS September 10, 2020
FOR THE TENTH CIRCUIT Christopher M. Wolpert
Clerk of Court
_________________________________
GREGORY D. CROSBY, a/k/a Gregory
D. Cosby,
Petitioner - Appellant,
No. 20-1221
v. (D.C. No. 1:19-CV-03199-WJM)
(D. Colo.)
BILL TRUE, Warden,
Respondent - Appellee.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before BRISCOE, BALDOCK, and CARSON, Circuit Judges.
_________________________________
Petitioner Gregory D. Crosby, a federal prisoner proceeding pro se, appeals the
district court’s dismissal of his petition for a writ of habeas corpus under 28 U.S.C.
§ 2241 and seeks leave to proceed in forma pauperis.1 We affirm the dismissal of his
petition and deny his motion to proceed in forma pauperis.
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
1
Because Mr. Crosby is a federal prisoner proceeding under § 2241, a
certificate of appealability is not a prerequisite to his appeal. See McIntosh v. United
States Parole Comm'n,
115 F.3d 809, 810 n.1 (10th Cir. 1997).
I
Mr. Crosby is a federal prisoner in the custody of the Bureau of Prisons
(“BOP”). He is currently serving a 262-month sentence at the United States
Penitentiary-Administrative Maximum in Florence, Colorado.
Mr. Crosby filed the instant § 2241 petition on November 8, 2019. In his
petition, Mr. Crosby made two claims for relief. First, Mr. Crosby sought to
participate in evidence-based recidivism reduction (“EBRR”) programs and to
receive the associated time credits for completing such programs (the “EBRR
Claim”). Second, Mr. Crosby requested relocation to a United States Penitentiary
closer to his residence (the “Transfer Claim”). The district court denied both claims
without prejudice. The district court denied the EBRR Claim on the merits,
concluding Mr. Crosby’s request for access to the EBRR programming was
premature because the BOP had a two-year phase-in period to provide EBRR
programming, and that period had not yet elapsed. See 18 U.S.C. § 3621(h)(2). The
district court denied the Transfer Claim for lack of statutory jurisdiction, because that
claim was not cognizable under § 2241; instead, the district court found that the
Transfer Claim should be brought as a Bivens action. The district court also declined
to consider Mr. Crosby’s hand-written motion for appointment of counsel, because
the motion was illegible.
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II
Because Mr. Crosby appears pro se, we construe his filings liberally, but we
do not serve as his advocate. See Garrett v. Selby Connor Maddux & Janer,
425 F.3d
836, 840 (10th Cir. 2005).
A. The Transfer Claim
On appeal, Mr. Crosby asserts that the district court erred by failing to convert
his § 2241 petition into a Bivens action. Mr. Crosby failed to raise this issue below,
by either responding to the Warden’s jurisdictional arguments upon reply or by
moving the district court to convert his habeas petition into a civil rights action.
Accordingly, we review for plain error. See Richison v. Ernest Grp., Inc.,
634 F.3d
1123, 1130 (10th Cir. 2011).
The district court did not err in declining to sua sponte convert Mr. Crosby’s
Transfer Claim into a Bivens action. Although a district court may have discretion to
convert a pro se prisoner’s claim, nothing in this court’s prior rulings indicates that
failure to do so is error. Indeed, the cases Mr. Crosby relies upon recognize that the
decision to convert a prisoner’s habeas petition into a civil rights action is committed
to the district court’s discretion. See Bell v. United States, No. 08-CV-335-WDM-
KLM,
2009 WL 1609396, at *4 (D. Colo. June 9, 2009) (acknowledging the court
could dismiss for lack of jurisdiction); Jones v. Chester, No. 08-3285-RDR,
2009 WL
331614, at *2 (D. Kan. Feb. 10, 2009) (same). Furthermore, this court has previously
directed district courts to dismiss, without prejudice, a challenge to the place of
confinement improperly brought under § 2241. See, e.g., Palma-Salazar v. Davis,
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677 F.3d 1031, 1039 (10th Cir. 2012). Here, the district court similarly dismissed,
without prejudice, Mr. Crosby’s Transfer Claim improperly brought under § 2241.
Accordingly, the district court did not err.
B. The Motion for Appointment of Counsel
Mr. Crosby also asserts on appeal that the district court erred by failing to give
or send him an order on his motion for appointment of counsel. To the extent Mr.
Crosby objects to the district court’s ruling, the district court did not abuse its
discretion in declining to consider the motion for being illegible. See Hurt v. United
States, 705 F. App’x 778 (10th Cir. 2017) (dismissing illegible appeal as frivolous).
To the extent Mr. Crosby objects to the district court’s alleged failure to
communicate its order to Mr. Crosby, a notice of the order was, in fact, mailed to Mr.
Crosby at the prison where he is incarcerated. ROA at 106.
C. The EBRR Claim
Mr. Crosby’s appeal, even liberally construed, does not challenge the district
court’s merits ruling on his EBRR Claim. Unlike the Transfer Claim, the district
court did not dismiss Mr. Crosby’s EBRR Claim for lack of statutory jurisdiction.
Thus, Mr. Crosby’s challenge to the district court’s ruling on his Transfer Claim
cannot apply to his EBRR Claim. Mr. Crosby also does not raise any independent
objection to the district court’s ruling on his EBRR Claim. Although Mr. Crosby
asserts that he is eligible to participate in EBRR programming, his eligibility is not at
issue. In fact, the district court acknowledged Mr. Crosby’s eligibility. ROA at 130.
Accordingly, in the absence of Mr. Crosby’s identifying any error by the district
4
court as regards the EBRR Claim, we need not review the district court’s merits
ruling on that claim. See Dodds v. Richardson,
614 F.3d 1185, 1205 (10th Cir. 2010)
(“A court of appeals is not required to manufacture an appellant’s argument on
appeal when it has failed in its burden to draw our attention to the error below.”).
D. The Motion to Proceed In Forma Pauperis
Mr. Crosby has also filed a motion to proceed in forma pauperis. Because Mr.
Crosby has not provided a “reasoned, nonfrivolous argument on the law and facts in
support of the issues raised on appeal,” his motion is denied.
McIntosh, 115 F.3d at
813 (quotation omitted).
III
For the foregoing reasons, we AFFIRM the district court’s dismissal of Mr.
Crosby’s petition and DENY his motion to proceed in forma pauperis.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
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