Sandefur v. Pugh

• Court: Court of Appeals for the Tenth Circuit
• Decided: September 1, 1999
• Docket: 98-1377
• Status: Unpublished

Opinion

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS SEP 1 1999 FOR THE TENTH CIRCUIT PATRICK FISHER Clerk

GRADY RAY SANDEFUR,

Petitioner-Appellant,

v. Nos. 98-1377 & 98-1400 (D.C. No. 98-D-1427) MICHAEL PUGH, (D. Colo.)

Respondent-Appellee.

ORDER AND JUDGMENT *

Before BALDOCK , BARRETT , and McKAY , Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. Petitioner Grady Ray Sandefur appeals from the district court’s denial of

his petition for habeas relief asserted under 28 U.S.C. § 2241. We exercise

jurisdiction under 28 U.S.C. § 1291, and dismiss for failure to exhaust

administrative remedies.

On June 12, 1991, the Eighth Judicial Court of the State of Nevada

sentenced petitioner to the Nevada state prison for ten years after he pleaded

guilty to robbery with a deadly weapon of a Nevada bank. On November 7, 1991,

he was released to the custody of the United States Marshall for the purposes of

facing federal charges for robbery with a firearm of an Arizona bank. On

December 7, 1992, petitioner pleaded guilty to those charges and the United

States District Court for the District of Arizona sentenced petitioner to a term of

117 months, ordering the sentence to run concurrently with the sentences imposed

in Nevada.

Petitioner, who is currently incarcerated in a federal prison, alleged in his

pro se petition for habeas corpus that he should receive credit against his federal

sentence for time spent in federal custody before he was sentenced on the federal

charges. The district court denied the petition on the merits before it was served

on respondent. Petitioner, again appearing pro se , appealed the denial to this

Court. We ordered appointment of counsel and supplemental briefing on

April 20, 1999, and invited the United States Attorney, on behalf of respondent

-2- Michael Pugh, to respond to the arguments raised in the supplemental brief.

In his answer brief, respondent asserts that we lack jurisdiction over the merits

of petitioner’s claim because petitioner has not exhausted his administrative

remedies. Respondent attached an affidavit from a paralegal specialist at the

Bureau of Prisons stating that, after a search of the Bureau of Prison records,

he had been unable to find any Administrative Remedy Request for prior custody

credits (or for any other matter) filed by petitioner since his confinement in the

Bureau of Prisons. Petitioner did not file a reply brief responding to respondent’s

assertions or jurisdictional arguments.

It has long been settled that, before a federal inmate may seek review of

complaints relating to aspects of his imprisonment such as computation of his

sentence, he must exhaust the administrative remedies set forth in 28 C.F.R.

§§ 542.13-.16. See Williams v. O’Brien , 792 F.2d 986, 987 (10th Cir. 1986);

cf. United States v. Jenkins , 38 F.3d 1143, 1144 (10th Cir. 1994) (vacating district

court’s award of sentence credit and refusing to reach merits of appeal because

petitioner had not exhausted administrative remedies before seeking judicial

review). Petitioner has established that he received a letter from the Inmate

Systems Administrator of the Western Regional Office of the Federal Bureau of

Prisons on January 10, 1994, that informed him that he could not receive credit

against his federal sentence under 18 U.S.C. § 3585(b) because he had already

-3- received credit against his state sentence. He has not established, however, that

he formally filed a request for credit with the Warden or appealed from the

regional director’s denial. Petitioner does not urge, and we do not find any of the

“three broad sets of circumstances in which the interests of the individual weigh

heavily against requiring administrative exhaustion” described in McCarthy v.

Madigan , 503 U.S. 140, 146-49 (1992). Therefore, we decline to review the

district court’s denial of his habeas petition and remand for dismissal of the

petition. See Soyka v. Alldredge , 481 F.2d 303, 306 (3rd Cir. 1973) (refusing to

review denial of petition in case in which inmate requested credit from prison

officer but failed to request review of denial by Warden or to appeal denial to

General Counsel of Bureau of Prisons). We also dismiss petitioner’s appeal of

the district court’s order denying him leave to proceed in forma pauperis.

The decision and judgment of the United States District Court for the

District of Colorado are VACATED and the case is REMANDED with

instructions to dismiss the habeas petition.

Entered for the Court

Bobby R. Baldock Circuit Judge

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