• Ivan Parfenoff

“As Law and Justice Require”: A Traditional Habeas Approach to Modern Prisoner Rights

Updated: Aug 30


Abstract: This article argues that, contrary to general understanding, the writ of habeas corpus is available to challenge not only claims of unlawful conviction but also unlawful conditions of confinement. In a series of habeas cases beginning in the nineteenth century, the Supreme Court articulated a common law approach for extending habeas jurisdiction to habeas petitions that seek less than immediate or speedier release. During the 1950s and 1960s, the federal circuit drew on this nineteenth century approach to habeas in vindicating the rights of prisoners and those committed to psychiatric care. As a product of this historical context, the current habeas statutory framework allows for habeas challenges to detention conditions. Treating habeas in this way has two impacts. First, it helps ensure that detainees, who often file pro se, are heard on the merits of their claims and do not have their cases dismissed for lack of jurisdiction. Second, this reading has a procedural impact, in that courts may treat the habeas statutes as providing emergency relief where other federal statutes impose severe procedural requirements.


INTRODUCTION


On September 18, 2006, Viktoriya Ilina self-surrendered to federal authorities on charges of federal conspiracy and racketeering and was sentenced to forty-eight months in federal prison.[1] When she was a teenager, Ms. Ilina learned her body did not naturally produce normal amounts of progesterone.[2] Left untreated, such a condition leads to severe pain and profuse bleeding.[3] In fact, complications related to the condition contributed to Ms. Ilina’s 1999 diagnosis of cervical cancer.[4] Ms. Ilina needed to take medication to manage her abnormal levels of estrogen/progesterone.[5] Accordingly, the Bureau of Prisons (“BOP”) placed Ms. Ilina in a prison where she could continue receiving treatment.[6] Ms. Ilina was able to use her medication every day until April 17, 2007.[7]


On April 17, Ms. Ilina was transferred to FCI Danbury, where officials refused to continue her treatment.[8] Multiple appeals to the BOP doctors and administrators were to no avail.[9] It did not matter that Ms. Ilina received treatment at the previous prison, nor that she had received treatment for the condition during the previous ten years.[10] Even after exhausting the administrative appeals process, receiving an outside diagnosis of her condition, and an MRI revealing an unidentified growth in her uterus, the doctors and administrators at FCI Danbury refused her treatment.[11] The best the BOP doctor at FCI Danbury could offer was to condition Ms. Ilina’s treatment on her submitting to an exploratory surgery without anesthetic.[12]


Ms. Ilina filed a habeas petition in federal court challenging the conditions of her imprisonment.[13] When a federal prisoner is held in custody in violation of the Constitution or laws of the United States, they may file a writ of habeas corpus in federal court and seek relief, usually in the form of release from detention.[14] Ms. Ilina argued that the prison officials were deliberately indifferent to her medical condition in violation of the Eighth Amendment’s protections against cruel and unusual punishment.[15] Based on this theory, the district court ruled in Ms. Ilina’s favor, finding that when a habeas petitioner challenges the “execution of a sentence”—i.e., when a petitioner challenges the manner in which prison officials administer the conditions of detention—then the writ of habeas corpus is available to provide relief.[16] As for the relief in Ms. Ilina’s case, she could either request a transfer back to her original prison, or she could seek an injunction against FCI Danbury.[17]


While Ms. Ilina was successful in her habeas petition, things could have ended differently had she filed in a different circuit.[18] There is a stark divide across the federal circuits as to whether habeas can challenge unconstitutional or unlawful prison conditions.[19] In some circuits, people held in custody may never use habeas to challenge conditions of confinement.[20] Were Ms. Ilina to file her petition in one of these circuits, her claim would have been rejected and she would have had to re-file her claim under a different federal statute.[21] One can only speculate on the further deterioration of Ms. Ilina’s medical condition had she been forced to re-file. In other circuits, such as the Second Circuit, petitioners can challenge conditions of confinement, and they may properly seek immediate release from custody, transfer to another prison, or even injunctions prohibiting certain prison practices.[22]


This split as to the scope of habeas to challenge conditions of confinement originates in the Supreme Court case Preiser v. Rodriguez.[23] The Court held that habeas is the sole remedy for prisoners seeking immediate release from custody, meaning that prisoners could not rely on other federal statutes to secure release.[24] In essence, other federal statutes cannot tread on habeas’s territory when it comes to claims for release.[25] However, the Court failed to resolve whether habeas is ever available to seek a relief less than release, such as in Ms. Ilina’s case.[26]


This article argues that habeas is in fact available to challenge conditions of confinement. In a series of habeas cases beginning in the nineteenth century, the Court articulated a common law approach for extending habeas jurisdiction to habeas petitions that seek less than immediate or speedier release.[27] During the 1950s and 1960s, the lower courts drew on this nineteenth century approach to habeas in vindicating the rights of prisoners and those committed to psychiatric care.[28] These circuit decisions treated habeas as the primary mechanism for detainees seeking to challenge prison administrative decisions that result in unlawful conditions of confinement.[29] As a product of this historical context, the current habeas statutory framework allows for habeas challenges to detention conditions.


Treating the scope of habeas in this expansive way has an obvious impact on someone like Ms. Ilina. First, it helps ensure that people who file pro se are heard on the merits and do not have their cases dismissed for lack of jurisdiction. Second, the reading has an important procedural impact. One of the habeas statutes, 28 U.S.C. § 2241, only imposes prudential procedural requirements.[30] This means a court may at its own discretion excuse the common law procedural requirements applied to § 2241 habeas petitions.[31] In emergency situations, such as a pandemic, federal courts can act swiftly on § 2241 petitions by providing emergency relief for at-risk detainees.[32] In fact, in light of the COVID-19 pandemic, some courts waived § 2241’s procedural requirements in the name of emergency relief.[33]


The purpose of this article is to show how reading habeas broadly does more than merely increase court efficiency. Section 2241’s prudential requirements also mean that the statute is particularly suited to plaintiffs confronting emergency situations.


This article proceeds in five parts. Part I provides a primer to the substantive and procedural requirements of the federal habeas statutes. Part II closely examines the Supreme Court’s Preiser decision, to show where courts have erred in using Preiser to deny habeas relief for conditions of confinement claims. Part III solves the federal circuit’s Preiser problem by tracing the development of a nineteenth century habeas doctrine that supports interpreting habeas as available to seek relief from unconstitutional conditions of confinement. Part IV shows how the Second Circuit’s case law bridges the gap between the historical approach to habeas and the modern statutes. Finally, Part V applies the theories described to two short case studies from recent COVID-19 habeas petitions.


I. The Modern Habeas Statutes: Substance and Procedure


In 1867, Congress passed the modern habeas statutes.[34] This was the first time the writ extended to all prisoners seeking relief from unlawful confinement, marking the advent of the use of the writ as we know it today: a collateral attack on a prisoner’s unlawful conviction.[35] Since the passage of the 1867 laws, the writ has played a pivotal role in securing the rights of prisoners and remedying the abuses of the criminal legal and penal systems.[36] This Part of the article provides a brief overview of the substantive and procedural differences between three sections of the modern habeas statute, 28 U.S.C. §§ 2241, 2254, and 2255, in explaining how habeas may be used to challenge prison conditions as an unlawful “execution of a sentence.”[37] Doing so highlights § 2241’s position as a “catchall” or gap-filling writ.[38]


Section 2254 states that federal habeas relief is available to a petitioner held in custody on the judgement of a state court whenever the individual is held in custody “in violation of the Constitution or laws . . . of the United States.”[39] Courts have interpreted this language as applying to state prisoners seeking relief from either the imposition or the execution of a sentence.[40] Petitioners seeking relief from an unlawful imposition of a sentence attack the validity of the underlying conviction.[41] This is the classic formulation of habeas, where a petitioner alleges some constitutional defect with the trial process or underlying conviction, seeking to overturn the conviction and secure release from custody.[42] On the other hand, petitioners seeking relief from an unlawful execution of a sentence attack the manner or duration of confinement.[43] This type of challenge does not touch on the validity of the underlying conviction itself.

For an uncontroversial example of this claim, imagine a petition whose resolution requires immediate or speedier release from prison, like the restoration of “good-time” credits that lessens the number of days a prisoner must serve before release from custody.[44] For this type of petition, the challenge does not attack the validity of the underlying conviction, but rather the execution—or carrying out—of an otherwise valid sentence.


The text of § 2254 makes no distinction between the applicability of habeas relief to petitioners challenging the validity of a conviction or the execution of a sentence, so courts have interpreted the statute as encompassing any claim that questions the constitutionality or legality of the custody.[45]


When the habeas petitioner claims actual innocence or a defect with the trial process, the adequate remedy is obvious: immediate release or re-trial.[46] However, when the habeas petitioner claims the unlawful execution of a sentence, circuits are split both as to the types of harms that petitioners may challenge as well as the scope of relief available.[47]


Courts have not settled on either the meaning or scope of habeas challenges to the unlawful execution of a sentence.[48] Some courts have interpreted the execution of a sentence broadly, granting writs for petitions that challenge the conditions or place of confinement and seek relief through, for example, medical treatment via a prison transfer.[49] Other courts, reflecting both inter and intra-circuit splits, have taken a narrower view of what constitutes a proper petition challenging the execution of a sentence and limit relief solely to petitioners seeking immediate or speedier release from custody.[50]


This means that the scope of habeas relief available to a detainee suffering from inadequate medical treatment as a result of a prison transfer,[51] or languishing in solitary confinement without adequate justification from prison officials,[52] or denied a right to transfer to community confinement,[53] is purely a function of where the detainee was placed in detention. The rights and remedies available to a detainee to redress in federal court should not be so arbitrarily limited.


Returning to the text of the statutes, just as § 2254 allows courts to grant writs to state prisoners, § 2255 allows courts to grant writs to federal prisoners.[54] However, unlike § 2254, which applies when state prisoners challenge either the imposition or execution of a sentence, § 2255 applies when federal prisoners challenge solely the imposition of a sentence.[55] The text of § 2255(a) makes clear that courts may grant habeas relief under § 2255 only when “[a] prisoner in custody under sentence of a court established by Act of Congress [is] claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States.”[56]


Section 2255, however, does not preclude federal prisoners from challenging the unlawful execution of a sentence. Courts are undeterred by the lack of textual hook. Working around the apparent gap in habeas coverage, the lower courts have interpreted § 2241 as a catchall statute that extends habeas relief to petitions that do not fit neatly into either § 2254 or § 2255.[57]


Section 2241 states that “[w]rits of habeas corpus may be granted by the Supreme Court, any justice thereof, the district courts and any circuit judge within their respective jurisdictions.”[58] For example, in McGhee v. Hanberry, the Fifth Circuit held that § 2241 is available “where the petitioner establishes that the remedy provided for under § 2255 ‘is inadequate or ineffective to test the legality of his detention.’”[59] Because § 2255 precluded petitioners from challenging the execution of a sentence, § 2241 was the relevant habeas statute.[60] While the text of § 2241 does not affirmatively describe § 2241 as a catchall habeas statute, courts have come to interpret § 2241 as such by juxtaposing §§ 2254–55’s explicit text against § 2241’s ambiguous text.[61]


Section 2241’s role as a catchall provides courts broad authority in overseeing the administration of criminal justice and in remedying harms to detainees caused by unlawful or unconstitutional administration decisions.[62]


This doctrinal approach is peculiar because the text of § 2241 differs significantly from § 2255 or § 2254. For instance, the first subsection of § 2255 specifically states that habeas relief is available for federal prisoners when the prisoner is in custody “claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States.”[63] This language is significant because it explicitly describes the types of habeas petitions to which § 2255 applies: federal prisoners challenging the imposition of a sentence.[64]


Similarly, the first subsection of § 2254 states that a court may hear a habeas petition from a state prisoner who alleges that their “custody [is] in violation of the Constitution or laws or treaties of the United States.”[65] Again, just like Congress explicitly limited § 2255 relief to habeas petitions from federal prisoners challenging the imposition of a sentence, Congress explicitly limited § 2254 relief to state prisoners challenging the imposition or execution of a sentence.[66] While lower courts have applied this analysis in distinguishing § 2241 from the other habeas statutes, the Supreme Court has not endorsed any particular approach.[67]


Unlike the other habeas statutes, § 2241 provides no guidance for when its provisions are applicable—it reads like an open-ended power for courts to grant habeas relief. Section 2241 states that “[w]rits of habeas corpus may be granted by the Supreme Court, any justice thereof, the district courts and any circuit judge within their respective jurisdictions.”[68] Specifically, the statute extends whenever someone “is in custody under or by color of the authority of the United States or is committed for trial before some court thereof.”[69] Where § 2255(a) is clear that its provisions apply to federal prisoners seeking release from an unlawful conviction, and where § 2254(a) is clear that it applies to a state prisoner in custody in violation of the law, § 2241(a) is ambiguous as to when its provisions apply and which types of habeas petitions must be interpreted through its statutory provisions.


Because of § 2241’s unadorned language, courts have interpreted the statute as applicable to all habeas petitions that do not fall under the other statutes.[70] Some circuits follow similar reasoning: § 2241 begins where §§ 2254–55 end.[71] Sections 2254, 2255 only apply to federal and state prisoners, where § 2254 is a broad grant of jurisdiction to all habeas claims from state prisoners and § 2255 is limited just to claims challenging the imposition of a sentence.[72]


Because §§ 2254–55 are limited to these specific challenges, courts use § 2241 to grant habeas relief to federal prisoners solely challenging the execution of a sentence and, more generally, to all federal and state jail detainees,[73] immigration detainees,[74] Guantanamo Bay detainees,[75] and those who are civilly committed.[76] For the two million people held behind bars in 2022, 1.042 million were held in state prison.[77] This means that for the almost one million people held outside of state prison during 2022, § 2241 was the only form of federal habeas relief available.[78] In this context, § 2241’s role as a catchall is not that of a limited provision that only applies in limited circumstances. Rather, § 2241 plays a significant role in the habeas statutory framework. For the circuits to have no clear answer as to the scope of jurisdiction to hear habeas challenges to the execution of a sentence is to do a disservice to all who must rely on § 2241 as their only avenue for federal habeas relief.


Ultimately, these distinctions are important not only for their substantive differences, but also for their procedural differences. The most important distinction for this paper is that § 2254 has strict, statutory procedural requirements that may keep a federal court from ruling on the merits of a state prisoner’s petition.[79]


A federal court cannot grant a habeas writ under § 2254 unless one of these three conditions has been met: 1) “the applicant has exhausted the remedies available in the courts of the State;”[80] (2) “there is an absence of available State corrective process;”[81] or (3) “circumstances exist that render such process ineffective to protect the rights of the applicant.”[82] The exhaustion condition is met whenever the habeas petitioner has litigated their argument through the highest level of state court—i.e., a federal court cannot grant habeas relief until the state supreme court has first denied relief to the petitioner.[83]


The other two § 2254(b)(1)(B) conditions excuse the state court exhaustion requirement “only if there is no opportunity to obtain redress in state court or if the corrective process is so clearly deficient as to render futile any effort to obtain relief.”[84] These two exceptions limit a federal court’s ability to excuse § 2254’s exhaustion requirement.[85] A court can only excuse exhaustion if a petitioner has essentially no opportunity whatsoever to redress or gain effective relief in state court.[86]


Section 2241, however, does not by its own force require exhaustion. While courts do in fact impose exhaustion on § 2241 petitions as a prudential requirement, this means that § 2241’s requirements are not limited by statute.[87] Courts can and do provide flexibility in adapting § 2241’s exhaustion procedure to emergency circumstances.[88] Where courts are limited to extreme cases for excusing exhaustion in § 2254 petitions,[89] for § 2241 petitions, courts can excuse exhaustion as a matter of discretion.[90] This is exactly what happened for many detainees held in local jails, federal prisons, and immigration detention centers during the pandemic: courts across the country excused § 2241’s exhaustion requirements in light of immediacy of the danger posed by COVID-19.[91] If courts were more limited in their oversight of detention centers during the pandemic, the risk to detainees would have been significantly higher.[92]


Thus, despite the relative lack of textual guidance as to when § 2241’s substantive and procedural rules apply, the statute plays a significant role both as a form of emergency relief and as a catchall providing for habeas relief for federal prisoners, state and federal jail detainees, immigration detainees, and those who are civilly committed.


II. A Modern Habeas Problem: The Preiser Doctrine


The modern approach for how to interpret habeas challenges to the execution of a sentence comes from the 1973 Supreme Court decision, Preiser v. Rodriguez.[93] Part II closely analyzes Preiser to show that, despite how many lower courts have come to interpret Preiser, the Court’s decision does not limit a lower court’s ability to grant habeas relief to petitioners challenging the unlawful execution of a sentence for conditions of confinement claims. [94] By using Preiser to limit a detainee’s right to use habeas in correcting harmful administrative decisions, the lower courts have unnecessarily stifled the administration of justice for detainees who otherwise have little access to relief.[95]


In Preiser, three state prisoners alleged that the prison had unconstitutionally revoked their good-time credits.[96] Via a § 1983 action, the petitioners sought “injunctive relief to compel restoration of the credits, which in each case would result in their immediate release from confinement.”[97] The question before the Court was whether the petitioners could obtain the good-time credits and secure release under § 1983, or whether petitioners seeking release must file under the federal habeas corpus statute, specifically § 2254.[98] Section 1983 is a federal statute that allows any person to sue any state or the federal government for “the deprivation of any rights, privileges, or immunities secured by the Constitution and laws.”[99] By its own terms, as the petitioners argued, § 1983 is coextensive with the habeas statutes in challenging unlawful or unconstitutional forms of confinement.[100]


Allowing the prisoners to pursue relief under § 1983 would open an avenue for release that would not require first exhausting administrative remedies in state court,[101] since exhaustion would otherwise be required by statute under § 2254.[102] Ultimately, the Court’s decision rested on fine distinctions between the traditional role of habeas petitions in the common law and the role of habeas in the modern federal statutes.[103]


The Preiser decision has led many circuit courts to adopt a narrow view of the types of harm and scope of relief available to habeas petitions challenging the execution of a sentence and conditions of confinement.[104] Given the centrality of Preiser to the circuit split as to the extent of habeas jurisdiction to remedy administrative decisions, Preiser warrants careful review.

The Court contextualized Preiser within the common law history of habeas corpus ad subjiciendum.[105] Looking back to early seventeenth century decisions, the traditional purpose of the writ was to secure release from illegal detention.[106] Yet the early American approach to habeas differed from the English common law. For instance, unlike English courts, federal courts had permitted challenges to unconstitutional criminal statutes,[107] unlawful places of confinement,[108] and unconstitutional trials and convictions.[109] Habeas may have been more limited during the halcyon days of the early republic, but the writ’s ability to redress illegal custody had grown considerably by the late nineteenth century.[110]


Abstracting from the particularities of the English common law and the nineteenth century evolution of habeas law in the United States, the Court found that the traditional and core function of the habeas writ is to secure release from unlawful detention.[111] For the detainees in Preiser, because granting good-time credits would lead to the immediate release, and because the deprivation of the good-time credits was allegedly unlawful, the Court held that the plaintiffs’ claims “fell squarely within this traditional scope of habeas.”[112]


But just because habeas is the traditional writ for securing release does not preclude Congress from extending similar jurisdiction under § 1983 petitioners. Consequently, Congress could have intended overlapping jurisdiction for the two statutes.


In distinguishing between § 1983 and the habeas statutes, the Court looked to the policies underlying § 2254’s statutory exhaustion requirements and federal–state comity.[113] Requiring petitioners to exhaust state remedies before filing a habeas petition respects “state functions” by providing a state “the first opportunity to correct [its own] errors.”[114] While the Court sympathized with the petitioners’ worry that state courts might not adequately address a habeas complaint, and that state courts may move too slowly in emergency situations, the Court did not find these issues dispositive given the limited exceptions to § 2254’s exhaustion requirements.[115] Because Congress did not apply the same comity protections for claims under § 1983, the Court concluded that Congress intended for only the habeas statutes to be used to secure release.[116]


The consequence of this rule for § 1983 is clear: If the remedy sought necessarily implies immediate or speedier release—i.e., touches on the very fact or duration of confinement—then release is the only appropriate remedy and habeas is the only appropriate vehicle.


However, just because § 1983 is inappropriate to secure relief traditional to habeas does not mean that habeas cannot secure relief that falls within § 1983. In other words, Preiser did not explicitly hold that habeas and § 1983 can never overlap, only that § 1983 cannot secure traditional habeas relief. In fact, the Supreme Court directly injected this uncertainty into Preiser when it said in dicta that “[t]his is not to say that habeas corpus may not also be available to challenge . . . prison conditions” also open to attack under § 1983.[117] It is precisely this dicta that has so vexed the lower courts.[118] The courts take Preiser to mean that, because § 1983 cannot secure release, so also habeas cannot secure less than full release.[119] In other words, any claim that “does not fall within the ‘core of habeas corpus,’ . . . must be brought, if at all, under 42 U.S.C. § 1983.”[120]


However, in dicta, the Court considers specific instances where habeas may in fact be available to challenge prison conditions and seek forms of relief that fall short of immediate or speedier release.[121] In the waning pages of the opinion, the Court mused that habeas is arguably available to remove additional unconstitutional restraints on otherwise lawful custody, such as denied prison transfer requests for prisoners to receive medical treatment.[122]


If habeas is indeed available to challenge unconstitutional conditions of confinement—like prisoners seeking transfer to “a valid[,] and perhaps physically identical[,] confinement” for access to proper medical treatment—then habeas would be available to remove conditions of confinement that would not automatically require full release of the detainee.[123] The consequence of Preiser’s dicta is that habeas may in fact be available to challenge conditions of confinement or a custodian’s administrative decisions. So, for the lower courts to delay or deny habeas relief to a detainee on the basis of Preiser’s definition of § 1983 jurisdiction is to delay or deny the efficient administration of justice to detainees who may otherwise be facing serious consequences, like in Ms. Ilina’s case.


The Court revisited this issue in Bell v. Wolfish.[124] In Bell, federal pre-trial detainees held at the Metropolitan Correctional Center in New York City filed habeas petitions challenging unconstitutional conditions of confinement, ranging from overcrowded cells to inadequate recreational, educational, and employment resources.[125] Because the petitioners used habeas to seek remedies other than release from unconstitutional detention, Bell was poised to resolve Preiser’s dicta.[126] However, the Court declined that opportunity, despite the government conceding the point.[127] The detainees had filed an amended complaint asserting jurisdiction under 28 U.S.C. § 1361(a), providing federal jurisdiction to compel a federal officer to perform their duty.[128]


Despite Bell’s unwillingness to confront the habeas issue, the opinion hints at a path forward. Specifically, the Court “le[ft] 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.”[129] The “as distinct” language shows that there are two possible types of conditions of confinement habeas petitions, only one of which the Court would leave to answer another day.[130]


The first category—which the Court seems to indicate is already available to challenge in a habeas petition—are those claims indistinct from the fact or length of confinement itself, where the relief sought is immediate or speedier release.[131] The COVID-19 habeas cases are good examples of this type of claim. In these cases, the petitioners allege that the only relief from the dangerous conditions in the prison is immediate release from detention.[132] These challenges to conditions of confinement are indistinct from “fact or length of confinement itself” because the plaintiffs allege that the only adequate remedy is release.[133]


The second category of conditions of confinement habeas petitions are those distinct from the fact or length of confinement itself.[134] These are run-of-the-mill conditions of confinement claims, where relief would not alter the fact or length of confinement—think prison transfers, medical treatment, or other forms of relief short of immediate or speedier release.


While neither Preiser nor Bell use the phrase “execution of a sentence,” lower courts have interpreted habeas petitions challenging conditions of confinement—whether distinct or indistinct from the duration of confinement—as challenging the execution of a sentence.[135] Thus, Preiser has loomed large for how circuits understand habeas petitions challenging the unlawful execution of a sentence and conditions of confinement claims.


On one end of the spectrum, the Fifth, Sixth, Ninth, and Tenth Circuits all have decisions precluding habeas petitioners from challenging conditions of confinement when the relief sought falls short of release.[136] On the other end of the spectrum, the First, Second, Third, Fifth, and Sixth Circuits all have decisions operating on the premise that habeas and § 1983 may overlap in challenging conditions of confinement and securing relief outside of immediate or speedier relief.[137] Preiser has produced both inter and intra-circuit splits.


This article is not alone in teasing out the puzzle left in the wake of Preiser. In his article The Preiser Puzzle: Continued Frustrating Conflict Between the Civil Rights and Habeas Corpus Remedies for State Prisoners, Professor Martin A. Schwartz showed how the Court in Preiser failed to fully settle the doctrinal boundaries between § 1983 and habeas.[138] Professor Schwartz recognized that “Preiser . . . is filled with ambiguities and unresolved questions.”[139]


In surveying circuit decisions in the fifteen years following Preiser, Professor Schwartz found the lower courts consistently recognized that § 1983 is available to challenge conditions of confinement claims distinct from the fact of confinement.[140] However, the lower courts were split on Preiser’s guidance as to the scope of habeas jurisdiction to challenge conditions of confinement distinct from the length of confinement.[141] “[T]he weight of circuit court authority supports the use of federal habeas corpus to test the constitutionality of conditions of confinement” distinct from the fact or length of confinement.[142]


The case law has become more muddied and confusing in the thirty-three years since Professor Schwartz’s article.[143] In those intervening years, some circuits, like the Second Circuit, have adopted a robust and consistent case law that finds jurisdiction to grant habeas relief to all conditions of confinement claims.[144] Other circuits, however, like the Tenth Circuit, have consistently found habeas is unavailable to challenge conditions of confinement distinct from the fact or length of confinement.[145]


The most immediate consequence for courts that interpret Preiser as limiting habeas jurisdiction is that they deny relief and direct detainees to file a new complaint under a different statute, like § 1983. Courts kick the can down the road and direct the petitioners to follow the “right” rules next time. While this clears the docket, detainees remain aggrieved, and a new petition is incoming.


Even if courts prefer such deferral, Preiser does not provide an adequate basis for it. In fact, both Preiser and Bell hint at the possibility of habeas relief for claims distinct from the fact or duration of confinement.[146] If courts consistently adopted a broad approach to habeas jurisdiction, then detainees who file pro se could receive justice without having to file yet another federal claim under another statute that is equally opaque to the non-expert.


Ultimately, this article fills in a gap in the literature and case law by providing historical support for the more robust approach for finding habeas jurisdiction to challenge any conditions of confinement claim.[147] The Supreme Court’s failure to affirmatively define the jurisdictional overlap between § 1983 and habeas to challenge conditions of confinement has proved problematic to say the least. Whether habeas challenges to the execution of a sentence include conditions of confinement claims that do not seek immediate or speedier release is a live question that the Court must resolve. [148]


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FOOTNOTES:

[1] Second Amended Petition for Writ of Habeas Corpus at ¶ 9, Ilina v. Zickefoose, 591 F. Supp. 2d 145 (D. Conn. 2008) (No. 3:07-CV-1490(JBA)). [2] Id. [3] Id. at ¶¶ 5–8. [4] Id. [5] Id. [6] Id. [7] Id. [8] Id. at ¶¶ 10–21. [9] Id. [10] Id. [11] Id. [12] Id. [13] Ilina v. Zickefoose, 591 F. Supp. 2d 145, 145 (D. Conn. 2008). [14] Id. at 146–47. [15] Id. [16] Id. at 148. [17] Id. at 148–50. [18] See infra Part I. [19] See infra Parts I–II. [20] E.g.,Luedtke v. Berkebile, 704 F.3d 465, 465–66 (6th Cir. 2013). [21] For instance, § 1983 is also available to challenge unlawful prison conditions like those faced by Ms. Ilina. Section 1983 states any person who has been deprived a federal or constitutional right, by the federal or a state government, may seek equitable relief. 42 U.S.C. § 1983. [22] See infra Part I. [23] See Preiser v. Rodriguez, 411 U.S. 475, 475 (1973). [24] Id. at 500. [25] Id. [26] Id. at 499–500. [27] In re Bonner, 151 U.S. 242 (1894). [28] See Coffin v. Reichard, 143 F.2d 443, 445 (6th Cir. 1944) (citing In re Bonner, 151 U.S. at 242); Lake v. Cameron 364 F.2d 657 (D.C. Cir. 1966) (en banc). [29] See Coffin, 143 F.2d at 443; Lake, 364 F.2d at 657. [30] Sun v. Ashcroft, 370 F.3d 932, 938 n.7 (9th Cir. 2004). [31] Id. [32] 28 U.S.C. § 2241. [33] E.g., Xuyue Zhang v. Barr, --- F. Supp. 3d ---, 2020 WL 1502607, at *4–5 (C.D. Cal. Mar. 27, 2020). [34] Charles Doyle, Congressional Research Service, Federal Habeas Corpus: A Brief Legal Overview, in CRS Report for Congress 1, 4 (Apr. 26, 2006)https://fas.org/sgp/crs/misc/RL33391.pdf, https://fas.org/sgp/crs/misc/RL33391.pdf. [35] Id. [36] Id. at 7. [37] See Martin A. Schwartz, The Preiser Puzzle: Continued Frustrating Conflict Between the Civil Rights and Habeas Corpus Remedies for State Prisoners, 37 DePaul L. Rev. 85, 85 n.3 (1988) (discussing differences in jurisdiction to grant § 2241 versus § 2254). [38] While the Supreme Court has never spoken directly on the textual analysis, lower courts have employed it in distinguishing § 2241 as a catchall provision, and the Court has implicitly accepted § 2241 role as a catchall. See, e.g., Rasul v. Bush, 542 U.S. 466 (2004) (recognizing that § 2241 confers jurisdiction to grant habeas relief for detainees at Guantanamo Bay); Calcano-Martinez v. INS, 533 U.S. 348 (2001) (finding § 2241 jurisdiction for immigration detainees). For academic recognition of § 2241 as a “catchall” provision, see Megan A. Fernsten-Torres, Who Are We to Name? The Applicability of the “Immediate-Custodian-As-Respondent” Rule to Alien Habeas Claims Under 28 U.S.C. § 2241, 17 Geo. Immigr. L.J. 431, 431 (2003) (“28 U.S.C. § 2241, the so-called ‘catchall’ habeas provision” (citing Josephine R. Potuto, Prisoner Collateral Attacks: Federal Habeas Corpus and Federal Prisoner Motion Practice 11 (1991))). See also Schwartz, supra note 37 (discussing differences in jurisdiction to grant § 2241 versus § 2254). [39] 28 U.S.C § 2254(a). [40] See, e.g., In re Wright, 826 F.3d 774, 778 (4th Cir. 2016) (“The majority view is that § 2241 habeas petitions from convicted state prisoners challenging the execution of a sentence are governed by § 2254.”); Bailey v. Hill, 599 F.3d 976, 982–83 (9th Cir. 2010) (describing how § 2254 permits challenges to the imposition and execution of a state sentence); James v. Walsh, 308 F.3d 162, 167 (2d Cir. 2002) (“[A] state prisoner may challenge either the imposition or the execution of a sentence under Section 2254.”). [41] See, e.g., Walsh, 308 F.3d at 167. [42] Id. [43] Dhinsa v. Kreuger, 917 F.3d 70, 81 (2d Cir. 2019) (“challeng[ing] ‘the execution of a sentence’ include[es] challenges to disciplinary actions, prison conditions, or parole decisions” (Adams v. United States, 372 F.3d 132, 135 (2d Cir. 2004)(emphasis in original)). [44] This hypo is taken from Preiser v. Rodriguez, 411 U.S. 475 (1973). [45] 28 U.S.C. § 2254(a) (“The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.”). [46] Leah M. Litman, Legal Innocence and Federal Habeas, 104 Va. L. Rev. 417, 459, 490–92 (2018). [47] See cases cited infra note 49 and accompanying text. [48] Compare Dhinsa, 917 F.3d at 81 (“challeng[ing] ‘the execution of a sentence’ include[es] challenges to disciplinary actions, prison conditions, or parole decisions” (Adams, 372 F.3d at 135) (emphasis in original)), with Luedtke v. Berkebile, 704 F.3d 465, 465–66 (6th Cir. 2013) (“The district court properly dismissed without prejudice Luedtke's first three claims because [habeas] is not the proper vehicle for a prisoner to challenge conditions of confinement.”). [49] See, e.g., Muniz v. Sabol, 517 F.3d 29, 33–34 (1st Cir. 2008) (stating execution of a sentence includes challenges to the place of confinement); Dhinsa, 917 F.3d at 81 (“challeng[ing] ‘the execution of a sentence’ include[es] challenges to disciplinary actions, prison conditions, or parole decisions” (Adams, 372 F.3d at 135) (emphasis in original)); Hope v. Warden York Cnty. Prison, 972 F.3d 310, 324 (3d Cir. 2020) (“We have never held that a detainee cannot file a habeas petition to challenge conditions that render his continued detention unconstitutional.”); United States v. Jalili, 925 F.2d 889, 893–94 (6th Cir. 1991) (holding execution of a sentence petitions may challenge the place of confinement); Creek v. Stone, 379 F.2d 106, 109 (D.C. Cir. 1967) (“[I]n general habeas corpus is available not only to an applicant who claims he is entitled to be freed of all restraints, but also to an applicant who protests his confinement in a certain place, or under certain conditions, that he claims vitiate the justification for confinement.”). [50] See, e.g., Leamer v. Fauver, 288 F.3d 532, 542 (3d Cir. 2002) (“Conversely, 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 is appropriate.”); Carson v. Johnson, 112 F.3d 818, 820–21 (5th Cir. 1997) (“The distinction is blurry, however, when, as here, a prisoner challenges an unconstitutional condition of confinement or prison procedure. . . . If ‘a favorable determination . . . would not automatically entitle [the prisoner] to accelerated release,’ . . . the proper vehicle is a § 1983 suit.” (quoting Orellana v. Kyle, 65 F.3d 29, 31 (5th Cir. 1995) (per curiam))); Luedtke, 704 F.3d at 465–66 (“The district court properly dismissed without prejudice Luedtke's first three claims because [habeas] is not the proper vehicle for a prisoner to challenge conditions of confinement.”). [51] E.g.,Ilina v. Zickefoose, 591 F. Supp. 2d 145, 150 (D. Conn. 2008). [52] E.g., United States v. Bout, 860 F. Supp. 2d 303, 312 (2d Cir. 2012). [53] Gonzalez-Fuentes v. Molina, 607 F.3d 864, 875 n.9 (1st Cir. 2010). [54] 28 U.S.C. § 2255(a). [55] Id. [56] Id. [57] See, e.g., Dhinsa v. Kreuger, 917 F.3d 70, 81 (2d Cir. 2019) (“To challenge ‘the execution of a sentence,’ including challenges to disciplinary actions, prison conditions, or parole . . . 28 U.S.C. § 2241 provides the ‘proper means.’” (internal citation omitted)); Luedtke v. Berkebile, 704 F.3d 465, 466 (6th Cir. 2013) (“The district court was also right to conclude that Luedtke's fourth claim is cognizable under § 2241 as a challenge to the execution of a portion of his sentence.”); Muniz v. Sabol, 517 F.3d 29, 33–34 (1st Cir. 2008) (“[J]urisdiction is appropriate because a habeas petition seeking relief from the manner of execution of a sentence is properly brought under 28 U.S.C. § 2241.”); Coady v. Vaughn, 251 F.3d 480, 485 (3d Cir. 2001) (“[F]ederal prisoners challenging some aspect of the execution of their sentence, such as denial of parole, may proceed under Section 2241.”). [58] 28 U.S.C. § 2241(a). [59] McGhee v. Hanberry, 604 F.2d 9, 10 (5th Cir. 1979) (per curiam) (citing Wood v. Blackwell, 429 F.2d 62, 63 (5th Cir. 1968)). [60] See, e.g., Kahane v. Carlson, 527 F.2d 492, 496 (2d Cir. 1975) (Friendly, J., concurring). [61] For academic recognition of § 2241 as a “catchall” provision, see Megan A. Fernsten-Torres, Who Are We to Name? The Applicability of the “Immediate-Custodian-As-Respondent” Rule to Alien Habeas Claims Under 28 U.S.C. § 2241, 17 Geo. Immigr. L.J. 431, 431 (2003) (“28 U.S.C. § 2241, the so-called ‘catchall’ habeas provision” (citing Josephine R. Potuto, Prisoner Collateral Attacks: Federal Habeas Corpus and Federal Prisoner Motion Practice 11 (1991))). See also Schwartz, supra note 37 (discussing differences in jurisdiction to grant § 2241 versus § 2254). [62] While other federal statutes, like § 1983, may overlap in jurisdiction with habeas in their availability to challenge prison administrative decisions, there are substantive and procedural differences between the statutes that can sometimes make habeas the preferable vehicle for detainees. See Schwartz, supra note 37, at 150. [63] 28 U.S.C. § 2255(a). [64] Id. [65] 28 U.S.C. § 2254(a). [66] See id. [67] See, e.g., Rasul v. Bush, 542 U.S. 466 (2004) (recognizing that § 2241 confers jurisdiction to grant habeas relief for detainees at Guantanamo Bay); Calcano-Martinez v. INS, 533 U.S. 348 (2001) (finding § 2241 jurisdiction for immigration detainees). [68] 28 U.S.C. § 2241(a). [69] 28 U.S.C. § 2241(c)(1). [70] E.g.,United States v. Jalili, 925 F.2d 889, 893–94 (6th Cir. 1991) (holding execution of a sentence petitions may challenge the place of confinement). [71] See, e.g., Kahane v. Carlson, 527 F.2d 492, 496 (2d Cir. 1975) (Friendly, J., concurring); Coady v. Vaughn, 251 F.3d 480, 485 (3d Cir. 2001). [72] 28 U.S.C. §§ 2254(a), 2255(a). [73] See, e.g., Jackson v. Clements, 796 F.3d 841, 843 (7th Cir. 2015) (“The appropriate vehicle for a state pre-trial detainee to challenge his detention is § 2241.”). [74] E.g.,Hope v. Warden York Cnty. Prison, 972 F.3d 310 (3d Cir. 2020). [75] Rasul v. Bush, 542 U.S. 446 (2004). [76] Timms v. Johns, 627 F.3d 525, 530–31 (4th Cir. 2010); see also Archuleta v. Hedrick, 365 F.3d 644, 648 (8th Cir. 2004). [77] Wendy Sawyer & Peter Wagner, Mass Incarceration: The Whole Pie 2022, Prison Pol’y Initiative, https://www.prisonpolicy.org/reports/pie2022.html. [78] Except of course for federal prisoners challenging the imposition of a sentence. However, those prisoners must still file under § 2241 when seeking relief from the execution of a sentence. [79] 28 U.S.C. § 2254(b). Section 2254, unlike §§ 2241, 2255, is the only habeas statute with statutory exhaustion requirements. [80] 28 U.S.C. § 2254(b)(1)(A). [81] 28 U.S.C. § 2254(b)(1)(B)(i). [82] 28 U.S.C. § 2254(b)(1)(B)(ii). [83] See O’Sullivan v. Boerckel, 526 U.S. 838, 839 (1999). [84] Duckworth v. Serrano, 454 U.S. 1, 3 (1981). [85] Id. [86] Id. [87] E.g., Perez v. Wolf, 445 F. Supp. 3d 275, 284–86 (N.D. Cal. 2020). [88] Id. [89] 28 U.S.C. § 2254(b)(1)(B)(ii). [90] E.g., Singh v. Holder, 638 F.3d 1196, 1203 n.3 (9th Cir. 2011) (“On habeas review under § 2241, exhaustion is a prudential rather than jurisdictional requirement.”). [91] E.g., Perez, 445 F. Supp. 3d at 284–86. [92] See Lee Kovarsky, Pandemics, Risks, and Remedies, 106 Va. L. Rev. Online 71 (2020). [93] Preiser v. Rodriguez, 411 U.S. 475 (1973). [94] See, e.g., Palma-Salazar v. Davis, 677 F.3d 1031, 1035–36 (10th Cir. 2012) (holding that a prisoner’s habeas petition seeking transfer out of a maximum security prison had to be brought pursuant to Bivens) (citing Preiser, 411 U.S. at 484)); Brown v. Bledsoe, 405 Fed. Appx. 575, 577 (3d Cir. 2011) (finding no habeas jurisdiction to transfer a prisoner back to the federal prison where he had been receiving psychological treatment (citing Preiser, 411 U.S. at 484, 487)). But see Aamer v. Obama, 742 F.3d 1023, 1030–34 (D.C. Cir. 2014) (finding habeas jurisdiction for Guantanamo Bay detainees challenging guidelines for force-feeding protocols (citing Preiser, 411 U.S. at 475)). [95] See supra Part I. [96] Preiser, 411 U.S. at 476. [97] Id. [98] Id. at 477. [99] 42 U.S.C. § 1983. [100] See Preiser, 411 U.S. at 488–89. [101] Section 1983 does not by its own terms require administrative exhaustion. [102] See Preiser, 411 U.S. at 477. [103] Id. at 483–87. [104] See cases cited infra note 136. [105] Preiser, 411 U.S. at 484–86 (citing Ex parte Bollman, 8 U.S. 75, 79–80 (1807)). [106] Id. at 484 (citing Darnel's Case, 3 How. St. Tr. 1–59 (K.B. 1627); Bushnell’s Case, Vaughn, 135, 124 Eng. Rep. 1006 (1670)). [107] Ex parte Siebold, 100 U.S. 371 (1880) (unconstitutional act of Congress). [108] In re Bonner, 151 U.S. 242, 254–55 (1894) (holding that statute did not grant court jurisdiction to confine prisoner in a state penitentiary). [109] Johnson v. Zerbst, 304 U.S. 458 (1938) (reversing denial of habeas where petitioner alleged violation of Sixth Amendment right to counsel). [110] Preiser, 411 U.S. at 485–86. [111] Id. at 486–87. [112] Id. [113] Id. at 491. [114] Id. at 492. [115] Id. at 493–97. [116] Id. [117] Id. at 499. [118] E.g.,Nettles v. Grounds, 830 F.3d 922, 924–25 (9th Cir. 2016) (en banc) (“We conclude that because Nettles’s claim does not fall within the ‘core of habeas corpus,’ it must be brought, if at all, under 42 U.S.C. § 1983.” (quoting Preiser, 411 U.S. at 487)). [119] Id. [120] Id. [121] Preiser, 411 U.S. at 499. [122] Id. (citing Note, Developments in the Law–Habeas Corpus, 83 Harv. L. Rev. 1038, 1084 (1970)). [123] Note, Developments in the Law–Habeas Corpus, 83 Harv. L. Rev. 1038, 1084 (1970). [124] Bell v. Wolfish, 441 U.S. 520, 520 (1979). [125] Id. at 526–27. [126] Id. at 526 n.6. [127] Id. [128] Id. [129] Id. [130] Schwartz, supra note 37, at 150 (“[T]he Court explicitly left open whether habeas corpus may be used to review the constitutionality of conditions of confinement.”). [131] See id. at 148, 150; Bell, 441 U.S. at 526, n.6. [132] E.g., McPherson v. Lamont, 457 F. Supp. 3d 67 74–78 (D. Conn. 2020). [133] Bell, 441 U.S. at 526 n.6. [134] Id. [135] E.g., McIntosh v. U.S. Parole Comm’n, 115 F.3d 809, 811–12 (10th Cir. 1997). [136] Carson v. Johnson, 112 F.3d 818, 820–21 (5th Cir. 1997) (holding habeas is never appropriate unless granting the writ would result in speedier release); Luedtke v. Berkebile, 704 F.3d 465, 465–66 (6th Cir. 2013) (“The district court properly dismissed without prejudice Luedtke's first three claims because § 2241 is not the proper vehicle for a prisoner to challenge conditions of confinement.”); Nettles v. Grounds, 830 F.3d 922, 933 (9th Cir. 2016) (“We have long held that prisoners may not challenge mere conditions of confinement in habeas corpus[.]”); Palma-Salazar v. Davis, 677 F.3d 1031, 1035 (10th Cir. 2012) (“This court has stated ‘that a request by a federal prisoner for a change in the place of confinement is properly construed as a challenge to the conditions of confinement and, thus, must be brought pursuant to [Bivens].’” (quoting United States v. Garcia, 470 F.3d 1001, 1003 (10th Cir. 2006) (alteration in the original))). [137] Guerro v. Mulhearn, 498 F.2d 1249, 1253 n.9 (1st Cir. 1974) (“Although habeas may be used to secure relief relating to the conditions of confinement, as well as its duration, the Preiser circumvention rule was meant only to protect the integrity of the latter, traditional, function of habeas.”) (citations omitted); Thompson v. Choinski, 525 F.3d 205, 209 (2d Cir. 2008) (“First, to the extent Thompson was seeking injunctive relief from federally imposed conditions of confinement . . . . This court has long interpreted § 2241 as applying to challenges to the execution of a federal sentence, ‘including such matters as . . . prison conditions.’”) (quoting Jiminian v. Nash, 245 F.3d 144, 146 (2d Cir. 2001)); Coady v. Vaughn, 251 F.3d 480, 485 (3d Cir. 2001) (holding that a court may grant a habeas petition challenging the execution of a sentence and seeking transfer to community corrections); Gallegos-Hernandez v. United States, 688 F.3d 190, 194 (5th Cir. 2012) (per curiam) (extending habeas jurisdiction to a petitioner seeking placement in drug treatment program at a halfway house that did not automatically result in accelerated release); United States v. Jalili, 925 F.2d 889, 894 (6th Cir. 1991) (holding that habeas is proper to secure transfer from federal prison to a community treatment center). [138] Schwartz, supra note 37, at 85. [139] Id. at 112. [140] Id. at 147–48. [141] Id. at 150. [142] Id. [143] Id. [144] See infra Part III. [145] See Thompson v. Choinski, 525 F.3d 205, 209 (2d Cir. 2008) (“First, to the extent Thompson was seeking injunctive relief from federally imposed conditions of confinement . . . This court has long interpreted § 2241 as applying to challenges to the execution of a federal sentence, ‘including such matters as . . . prison conditions.’”). [146] Bell v. Wolfish, 441 U.S. 520, 526 n.6 (1979); Preiser v. Rodriguez, 411 U.S. 475, 493–500 (1973). [147] See infra Parts III–IV. [148] See, e.g., Skinner v. Switzer, 562 U.S. 521, 525 (2011) (“Habeas is the exclusive remedy, we reaffirmed, for the prisoner who seeks ‘immediate or speedier release’ from confinement.” (quoting Wilkinson v. Dotson, 544 U.S. 74, 82 (2005))).

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