ALD-263                                                         NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 20-1508
                                       ___________

                                 ANTHONY L. VIOLA,
                                             Appellant

                                             v.

                            WARDEN LEWISBURG USP
                       ____________________________________

                     On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                         (D.C. Civil Action No. 1-20-cv-00250)
                      District Judge: Honorable Sylvia H. Rambo
                      ____________________________________

       Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B) or
         Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                    July 23, 2020

               Before: MCKEE, SHWARTZ and PHIPPS, Circuit Judges

                            (Opinion filed: October 15, 2020)
                                       _________

                                        OPINION*
                                        _________




*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
PER CURIAM

       Appellant Anthony Viola, proceeding pro se and in forma pauperis, appeals from

the District Court’s order dismissing his petition under 28 U.S.C. § 2241. Because the

appeal presents no substantial question, we will summarily affirm the judgment of the

District Court.

       Viola filed a § 2241 petition while incarcerated at the United States Penitentiary in

Lewisburg, Pennsylvania. The District Court dismissed the petition as an improper use

of the writ of habeas corpus because it alleged various civil rights violations relating to

the conditions of Viola’s confinement during his previous incarceration at Federal

Correctional Institution McKean (“FCI McKean”). See Leamer v. Fauver, 

,

542 (3d Cir. 2002) (“[W]hen the challenge is to a condition of confinement such that a

finding in plaintiff’s favor would not alter his sentence or undo his conviction, an action

under § 1983 is appropriate.”). Specifically, Viola claimed: (1) that a prison staff

member destroyed his legal materials; (2) that he was held in administrative detention for

over two months without due process; (3) that prison staff interfered with his access to

the courts; (4) that, while in administrative detention, he was denied access to Catholic

services, his personal property, and outdoor recreation; and (5) that prison staff tampered

with his mail.

       A certificate of appealability is not required for a federal prisoner to appeal the

dismissal of a § 2241 petition. See Burkey v. Marberry, 

, 146 (3d Cir.




                                              2
2009). We have jurisdiction under 28 U.S.C. §§ 1291 and 2253(a).1 Our review of the

District Court’s decision to dismiss Viola’s § 2241 petition is plenary. See Cradle v. U.S.

ex rel. Miner, 

, 538 (3d Cir. 2002) (per curiam).

       We agree with the District Court that Viola’s claims are not cognizable in a § 2241

petition. In determining whether jurisdiction lies in habeas, we look to whether granting

the petition would “necessarily imply” a change to the fact, duration, or execution of the

petitioner’s sentence. McGee v. Martinez, 

, 936 (3d Cir. 2010). None of

Viola’s claims relate to the fact or duration of his sentence. Although Viola asserted his

actual innocence and named various constitutional defects in his conviction in the

supporting documents attached to his petition, see Statement of Facts, ECF No. 1-1 at 1-

4, his filings make clear that his petition sought to challenge the conditions of his

confinement (including specific occurrences) at FCI McKean, not whether his conviction

was valid. See, e.g., § 2241 Pet., ECF No. 1 at 5; Mem. of Law, ECF No. 1-1 at 7.

       Nor does Viola challenge what the case law describes as “the execution” of a

sentence—or how federal officials effectuate, or carry out, the sentence imposed by a

judge. See, e.g., Woodall v. Federal Bureau of Prisons, 

, 241–44 (3d Cir.

2005). In Woodall, we concluded that a prisoner challenging a Bureau of Prisons

regulation that limited placement in a Community Corrections Center was appropriately


1
  Even though the District Court dismissed Viola’s petition without prejudice, we have
jurisdiction over this appeal because Viola cannot amend his § 2241 petition to correct
the identified deficiency. Rather, he would have to pursue his claims through a different
cause of action—a civil rights action. See Borelli v. City of Reading, 

, 951
(3d Cir. 1976).

                                              3
using § 2241 to attack the execution of his sentence.

We noted that

“[c]arrying out a sentence through detention in [such a facility was] very different than

carrying out a sentence in an ordinary penal institution.”

Notably, we

determined that Woodall sought something well “more than a simple transfer,” observing

that his claims “crossed[ed] the line beyond a challenge to, for example, a garden variety

prison transfer.”

are, at best, “garden variety” challenges to

happenings at FCI McKean, not challenges to the manner in which the Bureau of Prisons

was effectuating his very sentence. Viola’s claims are, therefore, outside the scope of

§ 2241. See

unpersuaded by Viola’s arguments on appeal, which focus on the

purported merit of his prison grievances, rather than on the District Court’s determination

that § 2241 was not the appropriate vehicle for his claims. See Appellant’s Br. at 4.

Accordingly, we conclude that the District Court correctly dismissed Viola’s § 2241

petition without prejudice to the filing of an action pursuant to Bivens v. Six Unknown

Named Agents of Fed. Bureau of Narcotics, 

(1971). We will affirm the

judgment of the District Court. Viola’s Motion to Take Judicial Notice is denied. See

Werner v. Werner, 

, 294–95 (3d Cir. 2001).




                                             4