Samples v. Wiley , 349 F. App'x 267 ( 2009 )

FILED
United States Court of Appeals
Tenth Circuit
October 14, 2009
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
TIMOTHY D. SAMPLES,
Petitioner-Appellant, No. 09-1257
v. (D. of Colo.)
RON WILEY, Warden, Federal Prison (D.C. No. 09-cv-569-ZLW)
Camp,
Respondent-Appellee.
ORDER AND JUDGMENT *
Before TACHA, TYMKOVICH, and GORSUCH, Circuit Judges. **
Timothy D. Samples, a federal prisoner proceeding pro se, appeals the
district court’s denial of his petition for a writ of habeas corpus under
28 U.S.C. § 2241. Exercising jurisdiction under 28 U.S.C. §§ 1291 and 2253, we
AFFIRM the ruling of the district court.
*
This order and judgment is not binding precedent except under the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.
**
After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
I. Background
Samples is currently serving a fifty-one month prison sentence in the
custody of the United States Bureau of Prisons (BOP) in Florence, Colorado.
Taking into account good-conduct time, his projected release date is May 3, 2010.
This § 2241 habeas petition relates to Samples’s desire to be placed immediately
into a Residential Reentry Center (RRC or halfway house) for a twelve-month
period.
In his petition, Samples asserts that the BOP denied him a twelve-month
placement in an RRC, despite the fact that he completed the Residential Drug
Abuse Treatment Program (RDAP) on March 3, 2009. Samples contends that,
pursuant to 42 U.S.C. § 17541(a)(2)(A) and 18 U.S.C. § 3624(c), his completion
of the RDAP entitles him to be considered for a twelve-month placement in a
halfway house. He also asserts that, in violation of 18 U.S.C. § 3624(c) and
18 U.S.C. § 3621(e)(2)(B), the BOP never places prisoners, including those who
complete the RDAP, in RRCs for more than six months. Further, Samples asserts
that it would have been futile for him to attempt to exhaust his administrative
remedies, because the BOP administrative procedure would not have been
completed in time for him to be awarded a twelve-month placement in an RRC.
The BOP administrative remedy procedure permits inmates to seek formal
review of issues relating to any aspect of their confinement. See 28 C.F.R.
§ 542.10(a). A set of regulations, 28 C.F.R. §§ 542.10S542.19, governs the BOP
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administrative process. Under the BOP procedure, prisoners must first present
their complaints to prison staff informally. See 28 C.F.R. § 542.13. If inmates
are unable to resolve their issues informally, they may file formal administrative
remedy requests, generally with the wardens of the facilities where they are
incarcerated. See 28 C.F.R. § 542.14. If prisoners are unsatisfied with the
responses they receive from the wardens, they may file an appeal with the
appropriate regional director. See 28 C.F.R. § 542.15. Finally, if inmates are
dissatisfied with the responses of the regional directors, they may file an appeal
with the general counsel. See id.The government presents evidence that Samples has initiated the formal
BOP administrative procedure three times since his incarceration began. None of
those instances, however, relate to a request for placement at an RRC for a period
exceeding six months. Samples concedes that he has not exhausted his
administrative remedies with regard to RRC placement.
II. Discussion
We review the district court’s denial of habeas relief de novo, see Fricke v.
Sec’y of the Navy, 509 F.3d 1287, 1289 (10th Cir. 2007), and construe Samples’s
pro se petition liberally, see Van Deelan v. Johnson, 497 F.3d 1151, 1153 n.1
(10th Cir. 2007). Because Samples is a federal prisoner proceeding under § 2241,
he need not obtain a certificate of appealability to appeal the district court’s
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denial of habeas relief. See Montez v. McKinna, 208 F.3d 862, 867 (10th Cir.
2000).
Before seeking relief under § 2241, federal prisoners must exhaust their
administrative remedies. See Williams v. O’Brien, 792 F.2d 986, 987 (10th Cir.
1986) (per curiam). As the Supreme Court has noted, this exhaustion requirement
is important because it both protects administrative agency authority and
promotes efficiency in adjudicating claims. See Woodford v. Ngo, 548 U.S. 81,
89 (2006). Inmates may not exhaust their administrative remedies by failing to
employ them. See Jernigan v. Stuchell, 304 F.3d 1030, 1033 (10th Cir. 2002)
(“[Petitioner] may not successfully argue that he had exhausted his administrative
remedies by, in essence, failing to employ them and since he may now be time
barred from pursuing them, they are exhausted by default.”). Furthermore, “[a]
prisoner cannot manufacture exigency by tarrying.” Richmond v. Scibana, 387
F.3d 602, 604 (7th Cir. 2004).
While Samples may have colorable arguments supporting his claims, we
nevertheless decline to reach them because Samples has failed to exhaust his
administrative remedies. Samples admits that he has not exhausted the BOP
administrative process, but asserts that his failure to do so should not bar his
petition because such efforts would be futile. Samples contends that the
administrative process is too slow and that it was unlikely that the BOP procedure
would have been completed by May 3, 2009, the date upon which Samples would
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have needed to be transferred to an RRC in order to receive a twelve-month RRC
placement.
Despite this argument, futility does not excuse Samples’s failure to exhaust
his administrative remedies. Samples completed the RDAP on March 3, 2009 and
desired to be placed in an RRC on May 3, 2009. At a minimum, he had two
months with which to engage the BOP administrative procedure. It was entirely
possible that Samples could have completed the BOP administrative process
during that period. Had Samples pursued his administrative remedies, he may
have achieved a result in his favor or otherwise obtained a final determination
concerning his RRC-placement request.
Moreover, the record indicates that Samples was aware that he would likely
only receive a six-month placement in an RRC long before he completed the
RDAP. Samples has not demonstrated, nor has the court found anything to
suggest, that he was required to complete the RDAP before requesting a twelve-
month placement in an RRC. Had Samples initiated the BOP administrative
process prior to completing the RDAP, it is likely that he could have exhausted
his administrative remedies and sought judicial review more than a year before
his projected release date. Samples’s decision to put off engaging the BOP
administrative process, and any delay or alleged futility that decision created,
does not excuse his failure to exhaust his administrative remedies.
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III. Conclusion
Accordingly, we AFFIRM the ruling of the district court. We DENY
Samples’s motion to proceed in forma pauperis. While Samples has shown a
financial inability to pay the required fees, he has not demonstrated a reasoned,
non-frivolous argument on the law and facts in support of the issues raised on
appeal. See McIntosh v. U.S. Parole Comm’n, 115 F.3d 809, 812S13 (10th Cir.
1997).
Entered for the Court,
Timothy M. Tymkovich
Circuit Judge
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