NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ____________

                                     No. 13-2530
                                    ____________

                          RONALD EDWARD GILLETTE,

                                           Appellant

                                         v.

                 TERRITORY OF THE VIRGIN ISLANDS;
            WARDEN GOLDEN GROVE CORRECTIONAL FACILITY;
                     UNITED STATES OF AMERICA
                            ____________

                          On Appeal from the District Court
                                  of the Virgin Islands
                              (D. VI. No. 1-12-cv-00010)
                     District Judge: Honorable Wilma A. Lewis
                                     ____________

                           Argued December 9, 2013
             Before: FISHER, COWEN and NYGAARD, Circuit Judges.

                               (Filed: April 11, 2014)

Joseph A. DiRuzzo, III, Esq.
Jeffrey J. Molinaro, Esq. (ARGUED)
Fuerst Ittleman David & Joseph
1001 Brickell Bay Drive
32nd Floor
Miami, FL 33131

Jason T. Cohen, Esq. (ARGUED)
Office of United States Attorney
5500 Veterans Building, Suite 260
United States Courthouse
St. Thomas, VI 00802-6924
                                       ____________

                                OPINION OF THE COURT
                                     ____________

FISHER, Circuit Judge.

       Appellant Ronald Gillette appeals the sua sponte dismissal of his habeas corpus

petition, which he filed pursuant to 28 U.S.C. § 2241. The District Court concluded that

it lacked jurisdiction over the petition because Gillette’s challenge to the conditions of his

confinement at Golden Grove Correctional Facility (“GGCF”) should have been brought

as a civil rights action pursuant to 42 U.S.C. § 1983. We will affirm.

                                              I.

       We write principally for the parties, who are familiar with the factual context and

legal history of this case. Therefore, we will set forth only those facts necessary to our

analysis.

       Gillette was charged with a host of federal and territorial crimes in October 2007

in a thirty-count superseding indictment. The District Court dismissed the federal crimes

and conducted a bench trial on the remaining territorial crimes. Gillette was convicted on

June 19, 2009 of several of the territorial crimes. He was sentenced to 300 months’

imprisonment at GGCF. Gillette filed a direct appeal challenging his conviction and

sentence, which we affirmed. United States v. Gillette, -- F.3d --, 

(3d

Cir. Dec. 6, 2013).




                                              2
       Gillette filed his § 2241 petition on January 31, 2012, alleging that he was being

detained at GGCF in violation of his Eighth Amendment rights due to the dangerous and

unsanitary conditions in the facility, including his inability to secure constitutionally

adequate medical and mental health treatment. His petition sought release from

incarceration or relocation from GGCF to a constitutionally adequate facility.

       On the same day he filed his § 2241 petition, Gillette also filed motions to proceed

in forma pauperis (“IFP”) and for appointment of counsel. A magistrate judge denied the

motion to appoint counsel on March 2, 2012. Gillette filed two subsequent motions for

appointment of counsel, one pursuant to 28 U.S.C. § 1915 on March 30, 2012; and the

other pursuant to Federal Rule of Civil Procedure 17(c)(2) on July 31, 2012. These

motions, along with the motion to proceed IFP, were not ruled on by the District Court.

       On April 30, 2013, the District Court sua sponte dismissed Gillette’s § 2241

petition for lack of subject-matter jurisdiction. The District Court concluded that the

petition challenged only the conditions of his confinement at GGCF, not “his conviction,

the fact or duration of his confinement, or the execution of his sentence.” App. at 8. The

District Court observed that Gillette presented “a conventional claim under [§ 1983], as

[Gillette alleged] a violation of his Eighth Amendment rights by State actors during his

incarceration at [GGCF]—not that an alleged constitutional violation resulted in his

incarceration.” 

Court relied upon language in Leamer v. Fauver,

explaining that:




                                              3
       “whenever the challenge ultimately attacks the ‘core of habeas’—the
       validity of the continued conviction or the fact or length of the sentence—a
       challenge, however denominated and regardless of the relief sought, must
       be brought by way of a habeas corpus petition. Conversely, when the
       challenge is to a condition of confinement such that a finding in [Gillette’s]
       favor would not alter his sentence or undo his conviction, an action under
       § 1983 is appropriate.”

v. Fauver, 

, 542 (3d Cir. 2002)). Gillette filed a timely

appeal the same day, challenging: (A) the dismissal of his § 2241 petition; (B) the failure

to grant leave to amend his petition; and (C) the failure to grant his motions to proceed

IFP and to appoint counsel.

                                             II.

       The District Court had jurisdiction pursuant to 48 U.S.C. § 1612 and we have

appellate jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253(a). On appeal from the

dismissal of a § 2241 petition, we exercise plenary review over the District Court’s legal

conclusions and review its findings of fact for clear error. O’Donald v. Johns, 

, 173 n.1 (3d Cir. 2005). We review the remaining issues on appeal for an abuse of

discretion. See Cureton v. Nat’l Collegiate Athletic Ass’n, 

, 272 (3d Cir.

2001) (leave to amend pleadings); Sinwell v. Shapp, 

, 19 (3d Cir. 1976)

(motion to proceed IFP); Brightwell v. Lehman, 

, 191 (3d Cir. 2011) (motion

to appoint counsel).



                                            III.

       Gillette raises several arguments on appeal, each of which we address below.

                                             4
                                             A.

       Section 2241 gives federal district courts the power to grant a writ of habeas

corpus to prisoners within their jurisdiction who are “in custody in violation of the

Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241(c)(3). Unlike 28

U.S.C. § 2255, which applies to challenges to the validity of a prisoner’s sentence, § 2241

provides an avenue for federal prisoners to challenge the “execution” of their sentences.

Coady v. Vaughn, 

, 485 (3d Cir. 2001). We have, on several occasions,

defined the scope of an appropriate challenge to the execution of a sentence under

§ 2241. See Woodall v. Fed. Bureau of Prisons, 

, 242-43 (3d Cir. 2005)

(noting that the precise meaning of execution is “hazy,” but finding that a petition is valid

if it attacks the way a sentence is “put into effect” or “carr[ied] out”); McGee v. Martinez,

, 935 (3d Cir. 2010) (affirming the sua sponte dismissal of a § 2241 petition

that did not address how a sentence was put into effect or carried out).

       In Cardona v. Bledsoe, we refined the Woodall test for when a petition

challenging conditions of confinement can be brought pursuant to § 2241. 

,

534 (3d Cir. 2012). The petitioner in Cardona challenged his transfer to the Special

Management Unit of the facility where he was incarcerated. 

court

dismissed the petition for lack of jurisdiction because the challenged action did not fall

within the scope of habeas relief. 

The dismissal was without prejudice,

however, to petitioner filing a civil rights claim pursuant to Bivens v. Six Unknown

Named Agents of Federal Bureau of Narcotics, 

(1971). 

                                              5
concluding that “[i]n order to challenge the execution of his sentence under § 2241, [the

petitioner] would need to allege that BOP’s conduct was somehow inconsistent with a

command or recommendation in the sentencing judgment.” 

Gillette has not

made such a showing and, as discussed below, Cardona controls the outcome in this

case.

        Gillette relies on language in Woodall acknowledging that the execution of a

sentence “‘include[s] such matters as . . . prison conditions’” to support the argument that

his challenge is properly brought pursuant to § 

(quoting Jiminian

v. Nash, 

, 146 (2d Cir. 2001)). This reliance upon the definition of

“execution” utilized by courts in the Second Circuit is, however, misplaced. The Second

Circuit takes a broad view of whether challenges to the conditions of confinement may be

brought pursuant to § 2241. See Ilina v. Zickefoose, 

, 150 (D. Conn.

2008) (reviewing Second Circuit jurisprudence on this issue and concluding that that

court “has repeatedly and consistently held § 2241 to be a proper vehicle for asserting

conditions-of-confinement claims, without limitation.” (Emphasis added)).

        This Court’s approach is not so broad. As we explained in Cardona, a prisoner

must show that the conditions of his confinement are inconsistent with “a command or

recommendation in the sentencing 

. Absent such a showing,




                                             6
the petition may be dismissed without prejudice and reasserted as a civil rights claim. 

       Gillette concedes he is only challenging the “conditions of his confinement during

the duration of his sentence,” including the allegedly deplorable conditions at GGCF and

the lack of needed medical and mental health care. Appellant’s Br. at 21. He identifies

no “command or recommendation in the sentencing judgment” directing officials at

GGCF to provide him with specific health care. 

. Instead, he

relies upon general facts about GGCF set forth in pleadings in a separate case between

the United States Government and the Government of the Virgin Islands. App. at 20-23.

Gillette’s assertions are not specific enough to his situation to satisfy the test set forth in

Cardona because they do not challenge how his sentence was “put into effect” or “carried

out.” 

(internal quotations omitted).

       At oral argument, Gillette argued that his petition falls within the core of habeas

merely because it asks for his release. Allowing this type of clever pleading would

essentially permit a prisoner to bring any claim within the scope of habeas relief by

merely asking for release from custody, thus eviscerating the applicability of civil rights


       1
         The Supreme Court has not determined whether challenges to prison conditions
must be brought as a § 1983 claim or in habeas. See Bell v. Wolfish, 

, 527
n.6 (1979) (“[W]e leave to another day the question of the propriety of using a writ of
habeas corpus to obtain review of the conditions of confinement, as distinct from the fact
or length of the confinement itself.”); Nelson v. Campbell, 

, 643 (2004)
(stating, in dictum, that “constitutional claims that merely challenge the conditions of a
prisoner’s confinement, whether or not the inmate seeks monetary or injunctive relief, fall
outside that core and may be brought pursuant to § 1983 in the first instance”).

                                               7
statutes like § 1983. Such a result does not comport with the stringent test adopted in

Cardona. 2 Moreover, Gillette’s argument runs counter to our holding in Leamer, which

requires a showing that “a favorable decision…would necessarily imply that [the

petitioner] would serve a shorter 

. Gillette has made no such

showing. The District Court therefore properly dismissed Gillette’s § 2241 petition

without prejudice to his asserting a civil rights claim at a later time.3

                                              B.

       The District Court did not abuse its discretion in not granting Gillette leave to

amend his pleadings. Gillette argues that he should have been granted, sua sponte, leave

to assert a civil rights claim upon dismissal of his § 2241 petition. This argument

erroneously relies upon civil rights cases dismissed for failure to state a claim. In such

cases, we have required that district courts permit amendment sua sponte. See, e.g.

Fletcher-Harlee Corp. v. Pote Concrete Contractors, Inc., 

, 251-53 (3d Cir.

2007) (discussing requirement of sua sponte permitting amendment in civil rights cases

even where the plaintiff did not request amendment). Because Gillette chose not to

pursue a civil rights claim in this case, the District Court was not required to permit sua

sponte amendment. As discussed above, however, nothing precludes Gillette from filing

       2
         Gillette argues that he cannot bring a § 1983 claim against the Territory of the
Virgin Islands. Since he did not raise such a claim in the District Court, however, his
argument is not properly before us and we do not address it here.
       3
         Although the District Court did not specify that its dismissal was without
prejudice, a dismissal for lack of jurisdiction is deemed to be without prejudice. See Fed.
R. Civ. P. 41(b); EF Operating Corp. v. Am. Bldgs., 

, 1048-49 (3d Cir.
1993).

                                               8
a separate civil rights claim. Moreover, the substantial differences in pleading and filing

between § 2241 petitions and § 1983 complaints (specifically the requirements imposed

by the Prison Litigation Reform Act) dictate that the District Court did not abuse its

discretion in not permitting Gillette to amend his petition.

                                             C.

       Because the District Court properly dismissed Gillette’s § 2241 petition, his

remaining arguments with respect to the motions to proceed IFP and for appointment of

counsel fail because there was no claim left to pursue. Dismissal rendered the remaining

motions moot, and the District Court did not abuse its discretion by not addressing them.

                                             IV.

       For the above stated reasons, we will affirm the District Court’s dismissal of

Gillette’s § 2241 petition.




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