Lonnie Bernard Davis v. Warden, FCC Coleman - USP I , 661 F. App'x 561 ( 2016 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 15-12295
Non-Argument Calendar
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D.C. Docket No. 5:13-cv-00181-WTH-PRL
LONNIE BERNARD DAVIS,
Petitioner-Appellant,
versus
WARDEN, FCC COLEMAN - USP I,
Respondent-Appellee.
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Appeal from the United States District Court
for the Middle District of Florida
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(August 8, 2016)
Before TJOFLAT, JORDAN and JULIE CARNES, Circuit Judges.
PER CURIAM:
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Lonnie Davis, a federal prisoner proceeding pro se, appeals the district
court’s order dismissing without prejudice his 28 U.S.C. § 2241 habeas corpus
petition. Davis argues that the district court erred by dismissing his § 2241 petition
based on its determination that he failed to exhaust his administrative remedies.
We review de novo the district court’s denial of habeas relief under § 2241.
Bowers v. Keller, 651 F.3d 1277, 1291 (11th Cir. 2011) (per curiam). A district
court’s factual findings are reviewed for clear error. Id. We liberally construe pro
se pleadings. Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998)
(per curiam).
Additionally, we may construe a district court’s dismissal as a denial if the
distinction “makes no significant difference.” Cani v. United States, 331 F.3d
1210, 1216 (11th Cir. 2003) (construing a district court’s dismissal for lack of
subject-matter jurisdiction as a denial on the merits, and affirming); see also Boda
v. United States, 698 F.2d 1174, 1177 (11th Cir. 1983) (affirming the dismissal of
the civil suit, but modifying it so as to rest on an absence of jurisdiction).
A § 2241 petition may properly proceed where the petitioner challenges the
execution of his sentence. See Antonelli v. Warden, U.S.P. Atlanta, 542 F.3d 1348,
1352 (11th Cir. 2008) (explaining that challenges to the execution of a sentence are
cognizable under § 2241). However, the petitioner must exhaust available
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administrative remedies before he can obtain relief. Santiago-Lugo v. Warden, 785
F.3d 467, 474–75 (11th Cir. 2015). A prisoner seeking relief under § 2241 was
previously required to exhaust his administrative remedies as a jurisdictional
prerequisite to suit. Skinner v. Wiley, 355 F.3d 1293, 1295 (11th Cir. 2004) (per
curiam), abrogated by Santiago-Lugo, 785 F.3d at 471, 474–75, 474 n.5; see also
Gonzalez v. United States, 959 F.2d 211, 212 (11th Cir. 1992) (per curiam),
abrogated by Santiago-Lugo, 785 F.3d at 471, 474–75. In Santiago-Lugo, we
held that the administrative-exhaustion requirement was judge-made, rather than
jurisdictional. Santiago-Lugo, 785 F.3d at 474–75. Nevertheless, we emphasized
that “[t]he [administrative] exhaustion requirement is still a requirement; it’s just
not a jurisdictional one.” Id. at 475. In order to properly exhaust administrative
remedies, a petitioner must comply with an agency’s deadlines and procedural
rules. See Woodford v. Ngo, 548 U.S. 81, 90–91, 126 S. Ct. 2378, 2386, 165
L. Ed. 2d 368 (2006) (addressing the exhaustion requirement in the Prison
Litigation Reform Act).
Pursuant to the Bureau of Prisons (BOP’s) Administrative Remedy Program,
an inmate can “seek formal review of an issue relating to any aspect of” his
confinement. 28 C.F.R. § 542.10(a). An appeal of a hearing officer’s decision
“shall be submitted initially to the Regional Director for the region where the
inmate is currently located.” Id. § 542.14(d)(2). An inmate must submit his appeal
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to the appropriate Regional Director “within 20 calendar days” of the date that the
formal administrative decision was signed. Id. § 542.15(a). If not satisfied with
the Regional Director’s resolution, the inmate may then submit an appeal to the
General Counsel within thirty calendar days of the date on which the Regional
Director signed the response. Id. Time limits may be extended, however, when
the inmate demonstrates a valid reason for the delay. Id. Valid reasons include an
extended period during which an inmate was in transit or was physically incapable
of preparing the appeal. Id. §§ 542.15(a), 542.14(b). Appeal to the General
Counsel is the final administrative appeal. Id. § 542.15(a).
Here, the district court did not err by dismissing Davis’s § 2241 petition
without prejudice based on its determination that he failed to exhaust his
administrative remedies. Grounds One and Two of Davis’s petition challenged the
disciplinary action taken against him in 2011 as a result of the disciplinary hearing
officer’s (“DHO”) determination that he possessed a prohibited weapon. Although
the signed DHO report was delivered to Davis on February 17, 2011, Davis did not
submit his appeal to the Regional Director until March 15, 2011. Accordingly, the
Regional Office rejected his appeal as untimely, as it was not filed within twenty
days of February 17. See 28 C.F.R. §§ 542.15(a), 542.14(d)(2). Nevertheless,
because the time for filing an appeal may be extended for a “valid reason,” the
Regional Office advised Davis to resubmit his appeal within ten days, and to
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provide a staff memo on BOP letterhead verifying that the untimeliness was not his
fault. See 28 C.F.R. § 542.14(b). Although the Regional Office rejected Davis’s
initial appeal on April 4, 2011, Davis did not resubmit his appeal—sans
explanatory staff memo—until more than a month later, on May 18. Accordingly,
the Regional Office once again rejected Davis’s appeal as untimely, and advised
him to appeal to the Central Office. Although Davis received this rejection notice
in June 2011, he did not file an appeal with the Central Office until August 2011,
more than thirty days after the regional office rejected his appeal. Accordingly, the
record reveals that the BOP correctly rejected Davis’s Regional Office and Central
Office appeals as untimely under 28 C.F.R. § 542.15(a), and the district court did
not err by denying Grounds One and Two of Davis’s habeas petition based on its
conclusion that he failed to exhaust his administrative remedies.
In Ground Three of his § 2241 petition, Davis apparently contends that he
could have provided the Regional Office with the requested staff memo within ten
days of April 4, 2011, if the prison’s unit manager had not improperly denied his
request. Essentially, Davis contends that he was entitled to a staff memo
explaining that his initial regional appeal was untimely because he was indigent
and unable to obtain access to stamps. However, regardless of whether Davis was
indigent or not, the record reveals that he obtained stamps on February 18, 2011,
the day after he received notice of the DHO report and within the timeframe for
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filing his regional appeal. Accordingly, the actions of the prison’s unit manager
did not affect Davis’s ability to timely file his regional appeal, and Ground Three
of Davis’s § 2241 petition does not articulate any valid reason for the delay in
filing his initial appeal in the Regional Office, or his initial appeal to the Central
Office. Moreover, to the extent that Ground Three asserted a First Amendment
retaliation claim, such a claim was not cognizable in a § 2241 proceeding because
it did not challenge the execution of Davis’s sentence. See Antonelli, 542 F.3d at
1352. 1
Accordingly, the district court properly determined that Davis failed to
exhaust his administrative remedies. However, because the failure to exhaust
administrative remedies is no longer a jurisdictional prerequisite to suit, we
construe the district court’s dismissal as a denial, and affirm with that
understanding because the distinction makes no significant difference in this case.
See Santiago-Lugo, 785 F.3d at 474–75; see also Cani, 331 F.3d at 1216.
AFFIRMED.
1
Davis also raised a fourth claim—alleging that his Eighth Amendment rights were
violated by the arbitrary enforcement of prison discipline—which the district court ultimately
rejected. Because Davis does not refer to that claim on appeal, any issue in that respect is
abandoned. See Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1330 (11th Cir. 2004)
(holding that, if an appellant does not present a legal claim or argument in his initial brief, that
argument is deemed abandoned).
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