PSM-189                                                          NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 09-4668
                                      ___________

                                   RUDY STANKO,
                                                        Appellant

                                            v.

                  BARACK OBAMA; WARDEN DAVID EBBERT
                    ____________________________________

                    On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                          (D.C. Civil Action No. 09-cv-01911)
                    District Judge: Honorable James F. McClure, Jr.
                     ____________________________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                 September 17, 2010

   Before: FUENTES, GREENAWAY, JR. and VAN ANTWERPEN, Circuit Judges

                           Opinion filed: September 21, 2010

                                      ___________

                                       OPINION
                                      ___________

PER CURIAM

      Rudy Stanko, a federal prisoner, filed a petition for writ of habeas corpus in the

District Court for the Middle District of Pennsylvania. He complained of cruel and

unusual punishment and retaliation in violation of the First Amendment for pursuing his
administrative remedies and otherwise seeking legal relief. In particular, he claimed that

he was thrown in the “hole” and subjected to “diesel therapy” (a punishment he defined as

being transported in shackles and a belly-chain around the country with stops in the

“holes” of various federal prison facilities). He also alleged various irregularities and due

process violations relating to a hearing at which he was found guilty of filing fraudulently

notarized liens (which he characterized as grievances). As a result of the hearing, he lost

commissary, visiting, and telephone privileges, and he received additional time (180 days)

in the “hole” and 27 days in prison.1

       Stanko asked the District Court to enjoin prison officials from putting him in the

“hole” for more than 30 days and from subjecting him to “diesel therapy.” He also sought

declarations that prison officials violated various provisions of the Constitution by,

among other things, punishing him with 27 days in jail and other penalties for seeking

administrative relief.

       The District Court dismissed the petition, ruling that Stanko’s claims were not

appropriately brought in habeas because he did not challenge the fact or duration of his

confinement. The District Court recognized that Stanko complained about the additional

27 days of imprisonment, but noted that Stanko did not ask the court to “delete” the

sentence. The dismissal was without prejudice to Stanko’s efforts to pursue his claims in



   1
    Although we do not find facts on appeal, we note that it appears from documents
submitted to us (but not presented to the District Court) that Stanko challenges the loss of
27 days of good conduct time.

                                              2
an action pursuant to 42 U.S.C. § 1983.

       Stanko appeals. We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253.

Our review of the District Court’s legal conclusions is plenary. See Rios v. Wiley, 

, 262 (3d Cir. 2000). Upon review, we will affirm in part and vacate in part the

District Court’s judgment.

       We will affirm the District Court’s decision insofar as it dismissed Stanko’s

challenge to the conditions of his confinement because, as the District Court reasoned,

Stanko could not present such claims in his habeas petition. However, we will vacate the

District Court’s judgment to the extent that it dismissed Stanko’s habeas claims.

       In addition to raising prison condition claims, Stanko sought to put in question the

validity of the duration of his confinement, namely the additional 27 days of

imprisonment to which he became subject after his hearing. As the District Court noted,

Stanko does not clearly ask the District Court to invalidate the sentence (in the sense that

he did not ask for an immediate release). However, his case falls within the edict of

Preiser v. Rodriguez, 

, 500 (1973), that is “when a state prisoner is

challenging the very fact or duration of his physical imprisonment, and the relief he seeks

is a determination that he is entitled to immediate release or a speedier release from that

imprisonment, his sole federal remedy is a writ of habeas corpus.”

       Since Preiser, the Supreme Court has stated the rule more broadly. See, e.g.,

Wilkinson v. Dotson, 

, 78 (2005) (stating more simply that a prisoner “cannot



                                              3
use a § 1983 action to challenge ‘the fact or duration of his confinement’”). In Edwards

v. Balisok, the Supreme Court held that a prisoner’s success in a due process challenge to

the procedures used during a prison disciplinary hearing that resulted in his loss of 30

days’ good-time credit would necessarily imply the invalidity of the penalty he received.

See 

, 646-47 (1997). In that case, the prisoner argued that he was denied the

opportunity to put on a defense and that he was tried by an impartial arbiter. See 

to monetary damages and prospective injunctive relief, he sought a declaration

that the procedures used by prison officials at his hearing violated due process. See 

The Supreme Court held that the prisoner did not present a claim that was

cognizable under 42 U.S.C. § 1983. See 

       Stanko’s case, to the extent that he sought a declaration that his sentence of 27

days in jail violated his constitutional rights, is similar to Balisok. He alleged due process

violations; for instance, he claimed a sham trial in which he was not permitted to face his

accusers. Among other things, like Balisok, he sought a declaration that the respondents

violated his right to due process during the disciplinary proceedings. Also, Stanko sought

a declaration that prison officials violated other provisions of the Constitution; for

example, that they conducted a trial in violation of the protection against a bill of

attainder. Although ultimately he may not succeed on his bill of attainder claim or his




                                              4
other claims,2 his claims that challenge the disciplinary proceeding and the resulting

lengthened prison sentence sound in habeas. Accordingly, the District Court should have

considered them. For this reason, we will vacate the District Court’s judgment in part.

We remand this matter to the District Court for further proceedings consistent with this

opinion.




   2
    Although we express no opinion on the merits of Stanko’s claims, we note that he
may merely have been punished in ordinary prison disciplinary proceedings after having
filed improper liens against prison officials.

                                             5