Franco Tinoco Jaimes v. United States ( 2006 )


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  •                                                             [DO NOT PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT            FILED
    ________________________ U.S. COURT OF APPEALS
    ELEVENTH CIRCUIT
    No. 05-14514                 FEBRUARY 21, 2006
    Non-Argument Calendar             THOMAS K. KAHN
    CLERK
    ________________________
    D. C. Docket No. 04-01262-CV-TWT-1
    FRANCO TINOCO JAIMES,
    a.k.a. Villa Victorio Sanchez,
    Petitioner-Appellant,
    versus
    UNITED STATES OF AMERICA,
    Respondent-Appellee.
    ________________________
    Appeal from the United States District Court
    for the Northern District of Georgia
    _________________________
    (February 21, 2006)
    Before DUBINA, HULL and WILSON, Circuit Judges.
    PER CURIAM:
    Franco Tinoco-Jaimes, a federal prisoner proceeding pro se, appeals the
    district court’s denial of his federal habeas petition, brought pursuant to 
    28 U.S.C. §§ 2241
     and 2255. In his petition, Tinoco-Jaimes claims that the district court
    should have imposed concurrent sentences, and that he was entitled to credit for
    time served in state custody. The district court denied Tinoco-Jaimes’s petition
    because it found that he had failed to exhaust administrative remedies under §
    2241, and that his claim under § 2255 was time-barred. We affirm in part and
    remand in part.
    In August of 1996, Tinoco-Jaimes pled guilty to illegal reentry into the
    United States after deportation, and was sentenced to 24 months’ imprisonment
    and 3 years’ supervised release. Tinoco-Jaimes was deported to Mexico in January
    of 1999 but returned to the United States in March of 2000. Several months later,
    he was arrested in Hall County, Georgia, and was charged with a number of
    offenses, including aggravated assault of a police officer. While Tinoco-Jaimes
    was in the custody of the Hall County Sheriff’s Department, federal immigration
    officials determined that he had previously been removed from the United States
    and was still on supervised release for his 1996 conviction. Tinoco-Jaimes was
    then indicted for unlawful reentry after having been deported, and in January of
    2001 pled guilty to the charge in federal district court. The district court sentenced
    2
    Tinoco-Jaimes to 84 months’ imprisonment and 3 years’ supervised release.1 In
    addition, the district court revoked his supervised release on his 1996 conviction
    and sentenced him to 24 months’ imprisonment, to be served consecutively to the
    84-month term. He was then returned to Georgia custody.
    On appeal, Tinoco-Jaimes argues that the district court erred in denying his
    petition, because the exhaustion requirements of the Prisoner Litigation Reform
    Act (“PLRA”), 42 U.S.C. § 1997e(a), do not apply to a petition under 
    28 U.S.C. § 2241
    , and because any attempt to exhaust his administrative remedies would
    have been futile. He further argues that his sentences should have run concurrently
    and been reduced by the amount of time he spent in state custody. Insofar as
    Tinoco-Jaimes’s petition could be interpreted as one brought pursuant to 
    28 U.S.C. § 2255
    , the district court denied his claims as time-barred.2 However, “[u]nless a
    circuit justice or judge issues a certificate of appealability [(“COA”)], an appeal
    may not be taken to the court of appeals from . . . the final order in a proceeding
    1
    In January of 2001, Tinoco-Jaimes also pled guilty to the Hall County charges and was
    sentenced to a term of incarceration in the custody of the Georgia Department of Corrections.
    2
    To the extent Tinoco-Jaimes argues that certain sentences should have been made to run
    concurrently or reduced under the United States Sentencing Guidelines, he is attacking the
    imposition of his sentence. Such claims are not cognizable under § 2241 unless the habeas
    petitioner establishes that the remedy provided by § 2255 is inadequate or ineffective to test the
    legality of his detention. See Darby v. Hawk-Sawyer, 
    405 F.3d 942
    , 945 (11th Cir. 2005) (per
    curiam). Tinoco-Jaimes has not attempted to carry that burden. See 
    id.
     (describing limited
    circumstances under which § 2255’s “savings clause” makes § 2241 available).
    3
    under § 2255.” 
    28 U.S.C. § 2253
    (c); see also Fed. R. App. P. 22(b). In
    interpreting § 2253(c) and Rule 22(b), we developed the following rules for
    appeals which, like Tinoco-Jaimes’s, are filed after the effective date of the
    Antiterrorism and Effective Death Penalty Act:
    (1) District courts must treat notices of appeal filed by petitioners
    following a denial of either a section 2254 or a section 2255 petition
    as applications for COAs.
    (2) District courts must consider and rule upon the propriety of issuing
    the COA first, that is, before a request for a COA will be received or
    acted on by this court or a judge of this court.
    Edwards v. United States, 
    114 F.3d 1083
    , 1084 (11th Cir. 1997) (per curiam). In
    the record before us, we find no order from the district court granting or denying a
    COA. To the extent that Tinoco-Jaimes purports to bring a claim under § 2255
    then, we must remand his action to the district court for a COA determination. See
    id. at 1084-85. Insofar as Tinoco-Jaimes seeks relief under § 2241, however, no
    COA is required. See Sawyer v. Holder, 
    326 F.3d 1363
    , 1364 n.3 (11th Cir. 2003)
    (“[A] federal prisoner who proceeds under § 2241 does not need a COA to
    proceed.”).
    We review a denial of habeas relief under § 2241 de novo. Skinner v. Wiley,
    
    355 F.3d 1293
    , 1294 (11th Cir.) (per curiam), cert. denied, 
    541 U.S. 1036
    , 
    124 S. Ct. 2112
    , 
    158 L. Ed. 2d 722
     (2004). Although the PLRA does not apply to habeas
    4
    petitions, we have held that prisoners seeking habeas relief under § 2241 must
    nevertheless exhaust administrative remedies. See id. at 1295. Furthermore, where
    a habeas petition is brought pursuant to § 2241 the exhaustion of administrative
    remedies is jurisdictional. See Winck v. England, 
    327 F.3d 1296
    , 1300 n.1 (11th
    Cir. 2003); Gonzalez v. United States, 
    959 F.2d 211
    , 212 (11th Cir. 1992) (per
    curiam). We must resolve jurisdictional issues before we address the merits of any
    underlying claims. See Steel Co. v. Citizens for a Better Env’t, 
    523 U.S. 83
    , 93,
    
    118 S. Ct. 1003
    , 1012, 
    140 L. Ed. 2d 210
     (1998).3
    The Attorney General has the authority to determine what credit, if any, is
    due a prisoner for time served, and the Attorney General has delegated the right to
    make this determination to the Bureau of Prisons (“BOP”). See Rodriguez v.
    Lamer, 
    60 F.3d 745
    , 747 (11th Cir. 1995); United States v. Lucas, 
    898 F.2d 1554
    ,
    1555-56 (11th Cir. 1990) (per curiam). A prisoner seeking credit against his
    sentence for time in custody must exhaust BOP administrative remedies, or else the
    district court has no jurisdiction to hear his claims. Lucas, 
    898 F.2d at 1556
    . “The
    [BOP] has established regulations governing formal review of inmate complaints
    relating to any aspect of imprisonment.” Id.; see 
    28 C.F.R. §§ 542.10
    -.19. These
    regulations “set out the procedures that prisoners must pursue prior to seeking
    3
    Like the denial of habeas relief, jurisdictional issues are subject to de novo review. See
    Taylor v. United States, 
    396 F.3d 1322
    , 1327 (11th Cir. 2005) (per curiam).
    5
    relief in a district court.” Lucas, 
    898 F.2d at 1556
    .
    Tinoco-Jaimes does not show or assert that he exhausted the administrative
    remedies provided for by the BOP. Rather, he asserts that such exhaustion would
    have been “patently futile,” because he believes that the BOP would not be able to
    resolve the issues he raises “without the assistance of the [district] court.” Given
    our precedent that the exhaustion requirement in § 2241 cases such as Tinoco-
    Jaimes’s is jurisdictional, whether he may even assert a futility exception to the
    requirement is questionable.4 Assuming Tinoco-Jaimes can argue futility,
    however, the case upon which he relies states that exceptions to the exhaustion
    requirement apply only in “extraordinary circumstances,” and that the petitioner
    “bears the burden of demonstrating the futility of administrative review.” Fuller v.
    Rich, 
    11 F.3d 61
    , 62 (5th Cir. 1994) (per curiam). Tinoco-James does not show
    that his case involves extraordinary circumstances, and does not adequately explain
    4
    Lucas concluded that the exhaustion requirement in § 2241 cases was jurisdictional
    after examining 
    18 U.S.C. § 3585
     and its predecessor, 18 U.S.C § 3568. See 
    898 F.2d at
    1554-
    56. We have reasoned that “[a]lthough judicially developed exhaustion requirements might be
    waived for discretionary reasons by courts, statutorily created exhaustion requirements bind the
    parties and the courts.” Richardson v. Reno, 
    162 F.3d 1338
    , 1374 (11th Cir. 1998) (emphasis
    added), judgment vacated on other grounds, 
    526 U.S. 1142
    , 
    119 S. Ct. 2016
    , 
    143 L. Ed. 2d 1029
    (1999). Failure to comply with statutory exhaustion requirements deprives a court of
    jurisdiction; thus “mandatory statutory exhaustion is not satisfied by a judicial conclusion that
    the requirement need not apply due to futility.” Id.; cf. Gallo Cattle Co. v. United States Dep’t of
    Agric., 
    159 F.3d 1194
    , 1197 (9th Cir. 1998) (“[W]hile judicially-created exhaustion
    requirements may be waived by the courts for discretionary reasons, statutorily-provided
    exhaustion requirements deprive the court of jurisdiction and, thus, preclude any exercise of
    discretion by the court.”). But see Rodriguez, 
    60 F.3d at 747
     (declining to address exhaustion in
    § 2241 context where Government did not raise issue of petitioner’s failure to exhaust).
    6
    why administrative review would prove futile. Thus, the district court properly
    denied his petition under § 2241.
    We affirm the district court’s denial of Tinoco-Jaimes’s petition insofar as
    he asserts claims under § 2241. To the extent that Tinoco-Jaimes purports to bring
    his claims under § 2255, however, we remand the case for a determination on
    whether to grant or deny a COA.
    AFFIRMED IN PART AND REMANDED IN PART.
    7