Kenneth Smith v. Jody Upton , 477 F. App'x 289 ( 2012 )

Case: 11-40845 Document: 00511940056 Page: 1 Date Filed: 07/31/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
July 31, 2012
No. 11-40845
Summary Calendar Lyle W. Cayce
Clerk
KENNETH RAY SMITH,
Petitioner-Appellant
v.
JODY UPTON,
Respondent-Appellee
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:10-CV-659
Before JONES, Chief Judge, and PRADO and ELROD, Circuit Judges.
PER CURIAM:*
Kenneth Ray Smith, federal prisoner # 05364-078, appeals the denial of
his 28 U.S.C. § 2241 habeas corpus petition. Smith’s petition argued that the
Bureau of Prisons improperly denied him credit for time that he spent in state
jail. The respondent moved for summary judgment on the basis that Smith
failed to exhaust his administrative remedies, and the district court granted the
respondent’s motion.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
Case: 11-40845 Document: 00511940056 Page: 2 Date Filed: 07/31/2012
No. 11-40845
Prior to seeking judicial review of credits under 18 U.S.C. § 3585(b),
prisoners are required to exhaust their administrative remedies. See United
States v. Dowling, 962 F.2d 390, 393 (5th Cir. 1992). Exceptions to the
exhaustion requirement apply when “available administrative remedies are
unavailable or wholly inappropriate to the relief sought, or where the attempt
to exhaust such remedies would itself be a patently futile course of action.”
Fuller v. Rich, 11 F.3d 61, 62 (5th Cir. 1994) (internal quotations and citation
omitted). However, exceptions to the exhaustion requirement apply only in
extraordinary circumstances, and the petitioner bears the burden of
demonstrating the futility of administrative review. See id.Smith has failed to brief any argument that exhaustion was futile in his
case. Although pro se briefs are afforded liberal construction, even pro se
litigants must brief arguments in order to preserve them. Yohey v. Collins,
985 F.2d 222, 224-25 (5th Cir. 1993). Thus, Smith has “effectively abandoned”
any challenge to the district court’s dismissal of his claim for lack of exhaustion.
Mapes v. Bishop, 541 F.3d 582, 584 (5th Cir. 2008).
AFFIRMED.
2