United States District Court, D. Connecticut
MEMORANDUM OF DECISION
Vanessa L. Bryant United States District Judge
In a 28
U.S.C. § 2254 petition, Charles Bruce Devorce raises
allegations pertaining to the denial of medical
treatment. ECF Nos. 1-2; 1-3. Because these claims
are normally raised in a 42 U.S.C. § 1983 action, the
Court ordered Devorce to explain whether he sought to
challenge the fact of his incarceration or the conditions of
his incarceration. ECF Nos. 7; 10. Devorce clarifies that he
seeks to challenge the fact of his incarceration. ECF No. 11
at 2 (“My challenge is directly [to] the imposition of
the sentence [that] I am now serving (violation of
prisoner may not raise conditions-of-confinement claims for
the purpose of attacking the imposition of a sentence.
See United States v. Huss, 520 F.2d 598, 603 (2d
Cir. 1975) (holding that conditions-of-confinement claims may
not be raised in a Section 2255 motion, the procedure for
challenging the imposition of a federal sentence). The
Huss Court stated that such claims may be raised in
a Section 2241 petition, the procedure for challenging the
execution of a federal sentence. Id.
(“Certainly § 2241 habeas corpus is available to
challenge a condition of custody.”).
several reasons this Court does not construe Devorce as
attacking the execution of his state sentence pursuant to
Section 2254, which provides state prisoners with the means
for challenging the execution of a state sentence. Devorce
states that he seeks relief from his underlying sentence, not
the execution thereof. ECF No. 11 at 2. And even if he is
challenging the execution thereof, the Second Circuit’s
statement that conditions-of-confinement claims may be raised
by way of habeas corpus may be untenable in light of the
Supreme Court’s observation in Nelson v.
Campbell, 541 U.S. 637 (2004). In that case, the Supreme
Court stated 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 [the core of habeas corpus] and may be
brought pursuant to § 1983 in the first instance.”
Id. at 643. Even assuming that Devorce wants to
challenge the execution of his sentence and Section 2254 is a
proper means of doing so, such a construction would be
futile. The petition would result in dismissal without
prejudice for failing to exhaust his claims in state court,
as required by 28 U.S.C. § 2254(b)(1).
leaves open the possibility that Devorce seeks relief
pursuant to Section 1983. But this construction would also be
futile because he seeks “the [vacatur] of [his]
violation of Probation sentence.” ECF No. 1-3 at 38.
Section 1983 provides no such remedy. See Preiser v.
Rodriguez, 411 U.S. 475, 500 (1973) (“[W]hen a
state prisoner is challenging the very fact or duration of
his physical imprisonment, and the relief he seeks is a
determination that he is entitled to immediate release or a
speedier release from that imprisonment, his sole federal
remedy is a writ of habeas corpus.”). If Devorce would
like to challenge his conditions of confinement and seek
relief from those conditions (as opposed to his underlying
criminal conviction and sentence), he should file a Section
1983 action. But he should do so only after exhausting
DOC’s grievance system. See 42 U.S.C.
Court DISMISSES the Section 2254 petition without prejudice.
See Starzecpyzel v. Reno, 1997 WL 607549, at *1
(S.D.N.Y. Oct. 2, 1997) (non-cognizable claims dismissed
without prejudice). A dismissal without prejudice does not
implicate the successive rules. See Camarano v.
Irvin, 98 F.3d 44, 46 (2d Cir. 1996) (observing
“the longstanding and widely accepted rule discussed
above, that no barrier to habeas review arises from the
dismissal of a petition on procedural grounds without
prejudice to refiling”). The Court denies a certificate
of appealability because jurists of reason would not find
this procedural ruling debatable. See Slack v.
McDaniel, 529 U.S. 473 (2000). The Court CERTIFIES under
28 U.S.C. § 1915(a)(3) that any appeal would not be
taken in good faith.
 In addition to his Eighth Amendment
claim, Devorce purports to raise a Sixth Amendment claim
based on his inability to call witnesses. The underlying
allegations, however, appear to address only the failure to
provide care recommended by experts who Devorce would like to
call as witnesses. See ECF No. 1-3 at 2 (letters
from Dr. Selig recommending treatment and Rametta
recommending care in a long-term residential treatment
program); cf. ECF No. 11 (“My intent is to
show my protections under both the 6th and 8th Amendments
[a]ffect a ‘sentence’ and the imposition thereof
is unconstitutional.”). If this reading of his claim is
incorrect, the petition still must be dismissed ...