ALD-365                                                        NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 17-2141
                                       ___________

                                    ERIC PERDOMO,
                                              Appellant

                                             v.

                              WARDEN LORETTO FCI
                       ____________________________________

                     On Appeal from the United States District Court
                        for the Western District of Pennsylvania
                             (W.D. Pa. No. 3-16-cv-00093)
                       District Judge: Honorable Kim R. Gibson
                      ____________________________________

       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
                                 September 28, 2017

              Before: MCKEE, JORDAN and RESTREPO, Circuit Judges

                            (Opinion filed: November 9, 2017)
                                        _________

                                        OPINION*
                                        _________

PER CURIAM

       Eric Perdomo, a federal inmate, filed a petition for a writ of habeas corpus under


*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
28 U.S.C. § 2241 seeking to challenge the Bureau of Prison’s (“BOP”) determination that

a Greater Security Management Variable should be applied to his custody classification.

Because this appeal presents no substantial question, we will summarily affirm. See 3d

Cir. L.A.R. 27.4; I.O.P. 10.6.

       In 2013, Perdomo pleaded guilty to one count of conspiracy to distribute and to

possess with the intent to deliver 500 grams or more of cocaine. He was sentenced to 80

months of incarceration, which was later reduced pursuant to 18 U.S.C. § 3582(c)(2) to

65 months of incarceration. In 2014, Perdomo was incarcerated at Satellite Prison Camp

Gilmer in Glenville, West Virginia, a minimum security facility. After it was determined

that Perdomo had extorted another inmate, a Greater Security Management Variable was

applied to Perdomo’s custody classification.1 Thereafter, Perdomo was transferred to

Federal Correctional Institution at Loretto, Pennsylvania, a low security facility.

Perdomo filed administrative grievances arguing that his custody classification violated

BOP policies, but he did not obtain relief.

       Perdomo then filed a petition for writ of habeas corpus in the United States

District Court for the Western District of Pennsylvania. After receiving a response,

Magistrate Judge Cynthia Reed Eddy recommended Perdomo’s petition be dismissed for

lack of jurisdiction. The District Court overruled Perdomo’s objections and dismissed

the petition. Perdomo appeals.


1
 When the BOP concludes that an inmate represents a greater security risk than his
normal security level would suggest, he is assigned a Greater Security Management
Variable. See BOP Program Statement 5100.08.

                                              2
       A certificate of appealability is not required to appeal the dismissal of a § 2241

petition. See Burkey v. Marberry, 

, 146 (3d Cir. 2009). We thus have

jurisdiction under 28 U.S.C. § 1291. Our review of the District Court’s decision to

dismiss Perdomo’s § 2241 petition is plenary. See Cradle v. U.S. ex rel. Miner, 

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

       Perdomo’s challenge to his custody classification is not cognizable in a § 2241

petition because he does not challenge the fact or duration of his imprisonment, which is

the “essence of habeas corpus.” See Preiser v. Rodriguez, 

, 484 (1973).

Nor does he challenge the execution of his sentence within the exception provided for in

Woodall v. Federal Bureau of Prisons, 

, 241 (3d Cir. 2005). In Woodall, we

held that a prisoner could bring a § 2241 petition challenging a BOP regulation that

limited placement in a Community Corrections Center because the BOP was not

“carrying out” Woodall’s sentence as directed. Specifically, we determined that

Woodall’s claims “crossed[ed] the line beyond a challenge to, for example, a garden

variety prison transfer.” 

“[T]o challenge the execution of his sentence under

§ 2241, [an inmate] would need to allege that BOP’s conduct was somehow inconsistent

with a command or recommendation in the sentencing judgment.” Cardona v. Bledsoe,

, 537 (3d Cir. 2012). Here, Perdomo does not allege that his custody

classification or his resulting transfer conflict with his sentence. Indeed, Perdomo does

not argue the sentencing court expressed any view about the appropriate security

designation for him. Instead, Perdomo’s claims are much more akin to challenges to the

“garden variety” custody levels that Woodall indicated were excluded from the scope of

                                             3
§ 2241. Thus, the District Court correctly dismissed Perdomo’s § 2241 petition.

          In his objections to the Magistrate Judge’s report and recommendation, Perdomo

conceded that his challenge to his custody classification was not cognizable under

§ 2241. Perdomo argued that the District Court should construe his petition as an action

under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 

(1971) or as an action for declaratory relief. Given the significant differences

between the rules and fees applicable to a prisoner’s general civil litigation case and a

request for habeas relief, we cannot conclude that the District Court abused its discretion

in denying Perdomo’s request to have his § 2241 petition re-characterized as a Bivens

action.

          Accordingly, we will summarily affirm the judgment of the District Court.




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