Lucero v. Wiley , 354 F. App'x 346 ( 2009 )

FILED
United States Court of Appeals
Tenth Circuit
December 1, 2009
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
SIMON LUCERO,
Petitioner - Appellant, No. 09-1344
v. (D. Colorado)
RON WILEY, Warden, Federal Prison (D.C. No. 1:09-CV-01118-ZLW)
Camp - Florence,
Respondent - Appellee.
ORDER AND JUDGMENT *
Before HARTZ, EBEL, and SEYMOUR, Circuit Judges.
Simon Lucero, a federal prisoner appearing pro se, appeals the dismissal by
the United States District Court for the District of Colorado of his application for
relief under 28 U.S.C. § 2241. Exercising jurisdiction under 28 U.S.C. § 1291,
we affirm.
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
DISCUSSION
Mr. Lucero, is housed at the Federal Prison Camp in Florence, Colorado
(FPC). He is serving a five-year sentence, with a projected release date of
November 8, 2012, for distribution of methamphetamine in violation of 21 U.S.C.
§ 841(A)(1). He applied to the district court for relief under 28 U.S.C. § 2241.
The application asserts that officials at FPC are violating the requirements of
18 U.S.C. §§ 3621(b) and 3624(c)(1)-(2) by categorically denying (1) the transfer
of eligible nonprerelease inmates to community correction centers and (2) all
inmates more than six months in residential re-entry centers. The district court
dismissed his claim without prejudice on the ground that he had not exhausted all
his administrative remedies. Mr. Lucero admitted that he has not pursued any
administrative avenues for relief; but he argued in district court that doing so
would have been futile, and thus not required, because any requested relief would
have been categorically denied.
We review de novo the district court’s denial of relief under § 2241. See
Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir. 1996). Because Mr. Lucero is
acting pro se, we construe his pleadings liberally. See Kay v. Bemis, 500 F.3d
1214, 1218 (10th Cir.2007).
Exhaustion of administrative remedies is a prerequisite to federal habeas
corpus relief. See McCormick v. Kline, 572 F.3d 841, 851 (10th Cir. 2009); Bun
v. Wiley, No. 09-1289, 2009 WL 3437831 (10th Cir. Oct. 27, 2009) (unpublished).
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On appeal Mr. Lucero acknowledges that he has not pursued any administrative
remedies. He contends, however, that he is not required to exhaust administrative
remedies because he is not challenging the application of Bureau of Prisons
regulations or policies but, rather, their validity. But Mr. Lucero did not raise
this contention in district court. Therefore, we decline to address it. See King v.
United States, 301 F.3d 1270, 1274 (10th Cir.2002) (As a general rule, “this court
will not consider an issue on appeal that was not raised below.”). Accordingly,
we hold that Mr. Lucero had no excuse for failing to exhaust his administrative
remedies.
Mr. Lucero also argues on appeal that the district court abused its
discretion in allowing the government “20 days to file a Preliminary Response
with respect to the exhaustion of administrative remedies.” Aplt. Br. at 3. He
asserts that authorizing the response “delayed any relief that may have been
obtained by an appeal,” and contends that the district court instead “should have
issued an order dismissing the case forthwith.” Id. In light of our ruling on
exhaustion, however, Mr. Lucero cannot show any prejudice. He has not
prevailed on appeal, so he has suffered no injury by any delay in our review of
the district court’s decision.
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CONCLUSION
We AFFIRM the district court’s dismissal without prejudice of
Mr. Lucero’s § 2241 application. We GRANT Mr. Lucero’s motion for leave to
proceed in forma pauperis.
ENTERED FOR THE COURT
Harris L Hartz
Circuit Judge
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