ALD-021                                                               NOT PRECEDENTIAL

                          UNITED STATES COURT OF APPEALS
                               FOR THE THIRD CIRCUIT
                                    ___________

                                          No. 14-1797
                                          ___________

                                 JOHN CHARLES KENNEY,
                                                   Appellant

                                                 v.

                              WARDEN LEWISBURG USP
                         ____________________________________

                       On Appeal from the United States District Court
                           for the Middle District of Pennsylvania
                                (D.C. Civil No. 1:13-cv-2743)
                        District Judge: Honorable Sylvia H. Rambo
                        ____________________________________

                          Submitted for Possible Summary Action
                     Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                      October 30, 2014


             Before: RENDELL, CHAGARES and SCIRICA, Circuit Judges


                             (Opinion filed: November 17, 2014)

                                            _________

                                          O P I N I O N*
                                           _________




* 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:

       John Charles Kenney, a federal inmate currently incarcerated at the United States

Penitentiary in Lewisburg, Pennsylvania (“USP Lewisburg”), appeals from an order of

the United States District Court for the Middle District of Pennsylvania dismissing his

petition for a writ of habeas corpus. Because the appeal presents no substantial question,

we will summarily affirm the judgment of the District Court.

       In his habeas petition, Kenney challenged the Bureau of Prisons’ March 2013

decision to transfer him to the Special Management Unit (“SMU”) at USP Lewisburg

from a different federal facility. Kenney argued that his transfer to the SMU violated his

due process rights, and that he did not meet the criteria for placement in the SMU. He

further claimed that Program Statement 5217.01, the basis for his placement, was

promulgated in violation of the Administrative Procedures Act (“APA”), 5 U.S.C. § 553.

       The matter was referred to a Magistrate Judge, who concluded that Kenney’s

claims were not cognizable in a habeas petition because they did not concern the validity,

duration, or execution of his conviction and sentence. The Magistrate Judge also noted

that even if Kenney had raised his allegations in a civil rights action, he would be

unlikely to prevail.1 He explained that, based on the allegations, Kenney’s placement in

the SMU did not implicate his due process rights because no liberty interest had been

triggered by such a transfer. See Sandin v. Conner, 

, 486 (1995) (holding


1
 Such an action would have been brought pursuant to Bivens v. Six Unknown Named
Agents of Fed. Bureau of Narcotics, 

(1971), the analogue for 42 U.S.C.
§1983 for claims against federal defendants.

                                             2
that routine transfers to administrative segregation do not impinge on liberty interests

protected by the due process clause unless the conditions in administrative segregation

present an atypical and significant hardship in relation to the ordinary incidents of prison

life).

         Kenney filed objections to the Magistrate Judge’s report and recommendation,

arguing primarily that his due process rights had been violated because he had

experienced atypical and significant hardship while confined in the SMU. He also

submitted an affidavit alleging that, since arriving at the SMU, he has been deprived of

medical treatment from a qualified doctor capable of treating his serious mental

condition. Thereafter, the District Court directed the defendant to respond to Kenney’s

habeas petition as well as his objections to the Magistrate Judge’s report and

recommendation. The defendant filed a response, arguing that Kenney’s petition should

be dismissed for lack of jurisdiction because, as the magistrate judge determined, his

claims did not sound in habeas. The defendant further argued that even if § 2241 was the

proper vehicle for bringing Kenney’s claims, they lacked merit. Overruling Kenney’s

objections, the District Court adopted the Magistrate Judge’s recommendation and

dismissed the petition. The District Court agreed that that Kenney’s claims were not

orgnizable in a § 2241 petition.2 After the District Court denied Kenney’s motion for

reconsideration, he timely appealed.


2
  The District Court also appeared to agree with the Magistrate Judge’s assessment that
even if Kenney had presented his allegations in a civil rights action, they did not suggest
that his placement in the SMU constituted a dramatic departure from the accepted
standards for conditions of confinement such that due process was implicated.
                                              3
       We have jurisdiction under 28 U.S.C. §§ 1291 & 2253(a). We review de novo the

District Court’s dismissal of the habeas corpus petition on jurisdictional grounds. See

Okereke v. United States, 

, 119 (3d Cir. 2002). We may summarily affirm a

judgment of the District Court if the appeal does not raise a substantial question. See 3d

Cir. I.O.P. 10.6; see also Murray v. Bledsoe, 

, 247 (3d Cir. 2011) (per

curiam).

       The District Court correctly determined that Kenney’s § 2241 petition does not

challenge the basic fact or duration of his imprisonment, which is the “essence of

habeas.” Preiser v. Rodriguez, 

, 484, 484 (1973). We have held that

§ 2241 “confers habeas jurisdiction to hear the petition of a federal prisoner who is

challenging not the validity but the execution of his sentence.” Woodall v. Fed. Bureau

of Prisons, 

, 241 (3d Cir. 2005) (citing Coady v. Vaughn, 

, 485

(3d Cir. 2001)). While the “precise meaning of ‘execution of the sentence’ is hazy,” 

we have defined execution to mean “put into effect” or “carry out,” 

(citation omitted). “[T]o challenge the execution of his sentence under § 2241, [an

inmate] would need to allege that [the Bureau of Prison’s] conduct was somehow

inconsistent with a command or recommendation in the sentencing judgment.” Cardona

v. Bledsoe, 

, 537 (3d Cir. 2012). Kenney has failed to do so here, as he has

not alleged that his placement in the SMU was inconsistent with any express command or

recommendation in his sentencing judgment. See 

agree with the




                                             4
District Court that Kenney’s confinement in the SMU does not give rise to a habeas

claim.3

       We also discern no abuse of discretion in the District Court’s order denying

Kenney’s request for reconsideration. See Max’s Seafood Café v. Quinteros, 

, 673 (3d Cir. 1999). A motion for reconsideration is a limited vehicle used “to

correct manifest errors of law or fact or to present newly discovered evidence.” 

(citation and quotation marks omitted). In his motion, Kenney presented the same

arguments that the District Court had previously rejected; the District Court properly

refused to allow Kenney to relitigate issues that it had already decided. See Lazaridis v.

Wehmer, 

, 669 (3d Cir. 2010).

       Accordingly, we conclude that there is no substantial question presented by this

appeal, and will thus summarily affirm the District Court’s orders dismissing Kenney’s

habeas petition and denying his motion for reconsideration.




3
  Because we affirm the dismissal of Kenney’s § 2241 petition on grounds that the
District Court lacked jurisdiction to consider it, we need not address whether the
complaint, even if construed as a civil rights action, failed to state a constitutional claim.
Although the District Court also opined that Kenney’s allegations failed to state a
cognizable due process claim, we deem the District Court’s dismissal of Kenney petition
as one without prejudice to his right to pursue his claims in a civil rights action pursuant
to Bivens. We express no opinion as to the merits of such an action.
                                               5