Warwick v. Miner

Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
12-12-2007
Warwick v. Miner
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-2364
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"Warwick v. Miner" (2007). 2007 Decisions. Paper 80.
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BLD-35 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 07-2364
___________
SELWIN WARWICK,
Appellant
v.
JONATHAN C. MINER,
Warden
____________________________________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil No. 06-cv-02459)
District Judge: Honorable Christopher C. Conner
____________________________________
Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)
or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
October 25, 2007
Before: McKee, Rendell and Smith, Circuit Judges
(Opinion filed: December 12, 2007 )
_________
OPINION
_________
PER CURIAM
Selwin Warwick, a federal prisoner, filed a petition pursuant to 28 U.S.C. § 2241,
challenging how the Bureau of Prisons calculated his sentence when it revoked his parole.
The District Court dismissed the petition for failure to exhaust administrative remedies.
Warwick appeals. The Government submits a motion for summary affirmance.
We grant the Government’s motion, and we will summarily affirm the District
Court because no substantial issue is presented on appeal. See L.A.R. 27.4; I.O.P. 10.6.
Ordinarily, federal prisoners must exhaust available administrative remedies before
filing a petition under 28 U.S.C. § 2241. See Moscato v. Fed. Bureau of Prisons, 98 F.3d
757, 760 (3d Cir. 1996). Warwick admitted, Petition 3-4, and the Government showed,
Response to Petition, Ex. 2 37-39, that he never exhausted his administrative remedies.
Furthermore, the District Court properly rejected Warwick’s claims that he was
entitled to be excused from the exhaustion requirement. Warwick argued that the
administrative review process was inordinately long. He based his claim on the length of
time (approximately one month instead of the expected five days) it took for the prison to
process an informal resolution that he had filed. However, Warwick need not have
waited for a slow response beyond the allotted time periods. An inmate who does not
receive a timely response may consider the absence of a decision a denial and take an
appeal to the next highest level. See 28 C.F.R. §§ 542.15 & 542.18. Furthermore,
Warwick had another avenue to challenge the revocation – an appeal to the National
Appeals Board. See id. at § 2.26. The National Appeals Board would have been required
to act within 60 days of the receipt of a challenge. See id. at § 2.26(c).
Warwick also made the bald claim that the administrative remedies “fail to afford a
full and fair adjudication of the federal contentions raised.” Petition 4. However, the
2
challenge to the calculation of his term is within the scope of matters that can be
adjudicated in the Administrative Remedy Program or through the National Appeals
Board. See 28 C.F.R §§ 542.10 & 2.26. Certainly, others have used the administrative
processes to challenge parole decisions. See, e.g., United States ex rel. Farese v. Luther,
953 F.2d 49, 50 (3d Cir. 1992).
Lastly, Warwick contended that his advanced age and his wife’s declining health
together constituted an “exceptional circumstance of peculiar urgency.” Although, in rare
cases of peculiar urgency, a federal court may issue a writ of habeas corpus before a
petitioner exhausts state remedies, see, e.g., United States ex rel. Kennedy v. Tyler, 269
U.S. 13, 18-19 (1925), Warwick’s situation is not analogous to the circumstances where
such extraordinary action has been warranted. Warwick’s is just a case of failure to
exhaust administrative remedies. And neither his age nor his wife’s health problems
account for Warwick’s inaction for the more than two years between the parole decision
and the filing of his § 2241 petition.
In sum, the District Court properly dismissed Warwick’s petition for failure to
exhaust his administrative remedies. Accordingly, we grant the Government’s motion for
summary affirmance, and we will summarily affirm the District Court’s judgment