JEFFREY C. BRUTEYN, Petitioner,
CLAUDE MAYE, Respondent.
RICHARD D. ROGERS, District Judge.
Petitioner, a prisoner incarcerated in the United States Penitentiary in Leavenworth, Kansas, proceeds pro se seeking a writ of habeas corpus under 28 U.S.C. § 2241. Having reviewed the record, the court denies the petition.
Petitioner claims he was denied his constitutional right to due process in a prison disciplinary proceeding in which he was found guilty of violating Code 297A, Attempted Use of the Telephone for Abuses other than Criminal Activity. The sanction imposed included the loss of 27 days of good time credit, which petitioner wants restored.
Petitioner was charged with having another inmate (C.R.) contact petitioner's paralegal (Ms. B) to tell her to arrange a legal call with petitioner whose phone and email privileges had been restricted at the time due to previously imposed disciplinary sanctions. Petitioner's Case Manager wrote Incident Reports against both C.R. and petitioner, charging petitioner with attempting to circumvent the telephone monitoring system by attempting to set up an unmonitored legal call with Ms. B, who had been identified on petitioner's visiting list as his significant other.
Following an investigation, petitioner appeared before a Disciplinary Hearing Officer (DHO) and denied the charge. Petitioner said that Ms. B was his paralegal and not his girlfriend, that he did not ask C.R. to email Ms. B, and that C.R. had contacted Ms. B on his own. The DHO considered the documentary evidence presented, including the Incident Report and investigation, and found petitioner had committed the prohibited act as charged.
Petitioner now seeks return of the forfeited 27 days of earned good time credit, and his record cleared of this disciplinary action. Petitioner contends his Case Manager acted in malice and retaliation, and points to the fact that his request for a legal call to Ms. B was subsequently approved by the Warden.
No Exhaustion of Administrative Remedies
Respondents first contend the petition should be dismissed because petitioner failed to fully and properly exhaust available administrative remedies. The court agrees.
It has long been held that exhaustion of all available administrative remedies is a prerequisite to a federal prison inmate seeking judicial review of administrative action by the Bureau of Prisons (BOP) and federal habeas corpus relief pursuant to 28 U.S.C. § 2241. See Williams v. O'Brien, 792 F.2d 986, 987 (10th Cir.1986); Brice v. Day, 605 F.2d 664 (10th Cir.1979). In order to have fully exhausted available administrative remedies, petitioner must have pursued full administrative review of the same claims presented in his federal habeas corpus petition.
Here, petitioner pursued administrative review of his disciplinary proceeding by filing a regional administrative remedy appeal to the South Central Regional Office, which was denied. Petitioner's subsequent appeal to the Central office was returned with direction that petitioner resubmit within 15 days (by May 26, 2012) and provide the required paperwork. Petitioner failed to do so.
Instead, petitioner provides the court with a copy of a cover letter from the Federal Inmate Advocates dated June 8, 2012, and one page of an administrative remedy resubmission dated June 8, 2012, signed by Timothy Walker on behalf of Jeffrey Bruteyn. Petitioner makes no persuasive showing, however, that this out of time response submitted and signed by an outside party was or should have been considered for administrative review by the Central Office.
To the extent petitioner contends remedies have been exhausted because no timely option for further administrative review exists, petitioner essentially acknowledges his failure to properly present his claims for full administrative review. See Woodward v. Ngo, 548 U.S. 81, 93 (2006); Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991). The court finds no persuasive showing has been made to excuse this procedural fault which bars federal habeas review of petitioner's claims. See Magar v. Parker, 490 F.3d 816, 819 (10th Cir.2007)(to excuse procedural default a habeas petitioner can "demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice'")(quoting Coleman, 501 U.S. at 750)); Moscato v. Federal Bureau of Prisons, 98 F.3d 757, 761 (3rd Cir.1996)(procedural default doctrine applies to § 2241 by federal prisoner alleging deprivation of rights in prison discipline). Accordingly, the court finds the petition should be dismissed with prejudice because petitioner's claims are unexhausted and procedurally barred.
No Denial of Due Process in Petitioner's Prison Discipline
Even if the merits of petitioner's claims were to be considered, petitioner would not be entitled to ...