Loewe v. Conner

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
FEB 7 2005
TENTH CIRCUIT
PATRICK FISHER
Clerk
CHARLES MASON LOEWE,
Petitioner-Appellant, No. 04-3288
v. District of Kansas
N.L. CONNER, Warden, Leavenworth (D.C. No. 03-CV-3063-RDR)
Penitentiary,
Respondent-Appellee.
ORDER AND JUDGMENT *
Before EBEL , MURPHY , and McCONNELL , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination
of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). This case is
therefore submitted without oral argument.
I. Background and Procedural History
This order and judgment is not binding precedent, except under the
*
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
This is a pro se 28 U.S.C. § 2241 appeal from the dismissal of a petition for
habeas corpus relief brought by a federal prisoner. Charles Mason Loewe is
currently in federal custody in the United States Penitentiary in Leavenworth,
Kansas (USPLVN). Mr. Loewe alleges he has fully served his federal sentence
and that for purposes of obtaining a parole hearing, he submitted an “Informal
Request to Staff Member” form to prison officials in October 2002. Mr. Loewe
claims to have received no response to this request, nor to subsequent letters
directed to prison management. Mr. Loewe filed a habeas petition in the United
States District Court for the District of Kansas, specifically contending that his
attempts to exhaust administrative remedies were impaired by prison staff.
Before the district court, the respondents stated that Mr. Loewe is entitled
to resubmit an informal request for a parole hearing and pursue administrative
review thereafter if necessary. The district court concluded the matter should be
dismissed without prejudice because “even if the court were to assume the truth
of petitioner’s assertion . . ., petitioner is unable to show any prejudice resulting
from [prison staff’s] failure to respond where petitioner was clearly advised and
allowed to resubmit his informal request.” Order, R. Doc. 17, at 3. Mr. Loewe
appeals the district court’s decision and seeks an order compelling the
respondents to process his October 2002 request. We exercise jurisdiction
pursuant to 28 U.S.C. §§ 1291 and 2253(a), and AFFIRM.
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II. Analysis
We review the district court’s dismissal of a § 2241 habeas petition de
novo. Broomes v. Ashcroft , 358 F.3d 1251, 1255 (10th. Cir. 2004); Patterson v.
Knowles , 162 F.3d 574, 575 (10th Cir. 1998).
Prior to seeking habeas relief under § 2241, federal prisoners must exhaust
administrative remedies. Williams v. O’Brien , 792 F.2d 986, 987 (10th Cir. 1986)
(per curiam). Mr. Loewe does not claim to have satisfied the exhaustion
requirement. Rather, he contends that he was impaired in his efforts to exhaust
administrative remedies by prison staff, preventing him from obtaining a parole
hearing or, alternatively, from satisfying the exhaustion requirement prior to
seeking habeas relief. Mr. Loewe argues that his October 2002 request for a
parole hearing was ignored and that he was therefore “blocked” from
administrative remedies. Appellant’s Br. at 9.
This argument is untenable in light of the uncontested statement of the
respondents that “petitioner may still seek [an] administrative remedy regarding
his initial parole hearing issue by . . . following the same procedures he used [in
other unrelated administrative appeals].” Response, Doc. 9, at 6. Even if Mr.
Loewe’s allegation that his October 2002 request was not processed properly, his
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ability to exhaust administrative remedies has not been impaired since he has the
ability to resubmit his claim.
III. Conclusion
We agree with the district court that Mr. Loewe has failed to show any
prejudice from his failure or inability to exhaust administrative remedies.
Therefore, the judgment of the United States District Court for the District of
Kansas is AFFIRMED.
Entered for the Court,
Michael W. McConnell
Circuit Judge
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