BLD-122                                                        NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 10-4661
                                       ___________

                            JOHN J. McCARTHY, Appellant

                                             v.

                              WARDEN, USP Lewisburg
                       ____________________________________

                     On Appeal from the United States District Court
                          for the Middle District of Pennsylvania
                                 (D.C. Civil No. 10-1609)
                     District Judge: Honorable William W. Caldwell
                      ____________________________________

                 Submitted for Possible Summary Action Pursuant to
                      Third Circuit LAR 27.4 and I.O.P. 10.6
                                 February 25, 2011
       Before: SLOVITER, JORDAN AND GREENAWAY, JR., Circuit Judges

                             (Opinion filed: March 14, 2011)
                                        _________

                                        OPINION
                                        _________

PER CURIAM

       Petitioner John McCarthy, an inmate currently incarcerated at USP-Lewisburg,

appeals pro se from the dismissal of his petition for a writ of habeas corpus pursuant to

28 U.S.C. § 2241. Because we conclude that this appeal presents no substantial question,




                                             1
we will summarily affirm the District Court’s judgment. See 3d Cir. L.A.R. 27.4; I.O.P.

10.6.

        McCarthy is serving a 235-month sentence imposed by the United States District

Court for the District of Connecticut. He entered federal custody at the conclusion of a

concurrent, 84-month state sentence.1 On some unspecified date, McCarthy was

transferred to the Special Management Unit (SMU) at USP-Lewisburg. 2 In July 2010,

McCarthy filed a putative habeas petition under § 2241 in the United States District Court

for the Middle District of Pennsylvania. In the petition, McCarthy claimed that “the

process accorded to him [as the predicate for transfer to the SMU] was perfunctory,” and

thus violative of his due process rights. He also claimed both that the SMU was created

arbitrarily and in contravention of federal law, and that he is being denied a cell change.

        By order entered December 2, 2010, the District Court adopted the Magistrate

Judge’s recommendation that McCarthy’s habeas petition “be dismissed without

prejudice to the petitioner asserting his claims in a Bivens action.” The Magistrate Judge

had rejected McCarthy’s contention that, under Woodall v. Federal Bureau of Prisons,


        1
         The factual circumstances surrounding McCarthy’s state and federal sentences
are set forth in McCarthy v. Doe, 

, 119-20 (2d Cir. 1998), and McCarthy v.
Warden, USP Leavenworth, 168 F. App’x 276, 277 (10th Cir. 2006).
        2
         “[T]he SMU program is designed to teach inmates self-discipline and social
values, and to facilitate their ability to co-exist with other inmates. An inmate who
follows the program will complete it in twelve to eighteen months. Progress in the
program results in a decrease in restrictions and, ultimately, a return to the general
population. An inmate’s failure to comply with the program results in greater restrictions
and increased duration of the program.” Mackey v. Smith, 249 F. App’x 953, 954 n.4 (3d
Cir. 2007). In addition, SMU inmates “are restricted to five hours of recreation per week,
three showers per week, and one telephone call in a thirty-day period.” 

                                             2


(3d Cir. 2005), McCarthy’s claims are cognizable in habeas proceedings as

challenges to the “execution” of his sentence. The Magistrate Judge had reasoned that,

“[u]nlike the transfer at issue in Woodall, which involved a transfer to a community

corrections center, the petitioner’s transfer involved the transfer from one federal prison

to another.” McCarthy appealed.3

       McCarthy’s habeas petition does not challenge the basic fact or duration of his

imprisonment, which is the “essence of habeas corpus.” Preiser v. Rodriguez, 

, 484 (1973). Rather, McCarthy’s principal objection is to serving part of his

sentence in USP-Lewisburg’s SMU. As we have explained, “when 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 [or Bivens] is appropriate.”

Leamer v. Fauver, 

, 542 (3d Cir. 2002). And we agree with the District

Court that because McCarthy’s transfer to the SMU does not cross the line beyond “a

garden variety prison transfer,” the transfer does not give rise to a habeas claim under

.

       Accordingly, because no “substantial question” is presented as to the dismissal of

McCarthy’s putative habeas petition, we will summarily affirm the judgment of the

District Court entered December 2, 2010.




       3
        We have jurisdiction under 28 U.S.C. § 1291, and our review is plenary. See
Cradle v. U.S. ex rel. Miner, 

, 538 (3d Cir. 2002).
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