Wesley v. Lamanna

ORDER

John Q. Wesley, Jr.-El, a pro se federal prisoner, appeals a district court judgment dismissing his petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2241. This case has been referred to a panel of the court pursuant to Rule 34(j)(l), Rules of the Sixth Circuit. Upon examination, this panel unanimously agrees that oral argument is not needed. Fed. R.App. P. 34(a).

In 1986, Wesley was convicted in the United States District Court for the District of Columbia for possession with the intent to distribute a controlled substance in violation of 21 U.S.C. § 841. Wesley was sentenced to serve 188 months in prison. Wesley was also sentenced to a consecutive 58 month term for violating 21 U.S.C. § 843.

Wesley states that he was on parole from a state conviction when he committed the federal offenses. He contends that the federal sentence was ordered to run concurrently with the state sentence. However, a federal detainer was lodged against Wesley which he contends violates the sentencing order of the trial court.

The district court dismissed the petition as meritless because Wesley had failed to exhaust his available administrative remedies.

In his timely appeal, Wesley admits that at the time he filed his petition, he had not exhausted his available administrative remedies. Wesley states that he has subsequently complied with the district court’s decision.

The district court’s judgment is reviewed de novo. See Charles v. Chandler, 180 F.3d 753, 755 (6th Cir.1999).

Although not a statutory requirement, it is well established that federal prisoners are required to exhaust their administrative remedies before filing a habeas corpus petition under § 2241. See Gonzalez v. United States, 959 F.2d 211, 212 (11th Cir.1992). Wesley admits that he did not exhaust his available administrative remedies prior to filing his petition. Therefore, the district court properly dismissed Wesley’s petition for his failure to exhaust his administrative remedies. See Rourke v. Thompson, 11 F.3d 47, 49 (5th Cir.1993). Although Wesley now states that he has exhausted his available administrative remedies, the exhaustion must occur before the petition is filed. See generally Brown v. Toombs, 139 F.3d 1102, 1104 (6th Cir.1998).

Accordingly, we affirm the district court’s judgment. Rule 34(j)(2)(C), Rules of the Sixth Circuit.