Opinion
1:12-cv-01203-JMS-DKL
09-14-2012
WELBY THOMAS COX, Petitioner, v. DIRECTOR, Volunteers of America, Respondent.
Entry and Notice
Welby Thomas Cox filed an action which seeks habeas corpus relief pursuant to 28 U.S.C. § 2241(c)(3) based on the conditions of his programming at a community halfway house. The habeas petition was summarily denied because Cox did not challenge either the fact or the duration of his confinement. Glaus v. Anderson, 408 F.3d 382, 387 (7th Cir. 2005)("While the Supreme Court has left the door open a crack for habeas corpus claims challenging prison conditions, it has never found anything that qualified."); Pischke v. Litscher, 178 F.3d 497, 500 (7th Cir. 1999) (holding that habeas is the proper vehicle for presenting a claim "if but only if the prisoner is seeking to 'get out' of custody in a meaningful sense").
Judgment was entered on the clerk's docket on August 31, 2012. Cox promptly filed an appeal, which has been docketed in the Court of Appeals as No. 12-3106.
There are many situations in which 28 U.S.C. § 2253(c)(1) requires the issuance of a certificate of appealability for an appeal from the denial of a petition for writ of habeas corpus. See, e.g., Slack v. McDaniel, 529 U.S. 473 (2000); Barnes v. Black, 544 F.3d 807, 811 (7th Cir. 2008)("As a matter of semantics, section 2253(a) could be read to apply to every subsection of section § 2241(c)(3) . . . ."). But this is not one of them. Bush v. Pitzer, 133 F.3d 455, 456 (7th Cir. 1997)("Under 28 U.S.C. § 2253(c)(1)(B), a federal prisoner needs a certificate of appealability only when appealing from the denial of relief under 28 U.S.C. § 2255."); see also McIntosh v. United States Parole Comm'n, 115 F.3d 809, 810 (10th Cir. 1997) (Section 2253 does not apply to habeas petitions by prisoners seeking review of federal agency determinations under § 2241).
This Entry and Notice is therefore issued to make clear that Cox need not request, and this court need not address, the issuance of a certificate of appealability in order for his appeal to proceed.
IT IS SO ORDERED.
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Hon. Jane Magnus-Stinson, Judge
United States District Court
Southern District of Indiana
Distribution: Welby Thomas Cox
611 N. Capitol Street
Indianapolis, IN 46204