Jeffery B. Hicks v. Martha L. Jordan , 165 F. App'x 797 ( 2006 )


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  •                                                            [DO NOT PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT
    FILED
    ________________________ U.S. COURT OF APPEALS
    ELEVENTH CIRCUIT
    February 2, 2006
    No. 05-14349
    THOMAS K. KAHN
    Non-Argument Calendar                  CLERK
    ________________________
    D. C. Docket No. 04-00300-CV-LSC-S
    JEFFERY B. HICKS,
    Petitioner-Appellant,
    versus
    MARTHA L. JORDAN,
    Respondent-Appellee.
    ________________________
    Appeal from the United States District Court
    for the Northern District of Alabama
    _________________________
    (February 2, 2006)
    Before BLACK, BARKETT and WILSON, Circuit Judges.
    PER CURIAM:
    Jeffery B. Hicks, a pro se federal prisoner, appeals the district court’s
    dismissal of his petition for writ of habeas corpus, which was filed pursuant to 
    28 U.S.C. § 2241
    . Hicks’s petition was dismissed because he failed to exhaust his
    administrative remedies, and alternatively, on the merits. On appeal, Hicks argues
    that the Government waived any failure to exhaust administrative remedies
    because the Government addressed the substance of Hicks’s claims in its
    arguments. Hicks also contends that because he wrote several letters to the Bureau
    of Prisons (“BOP”) regarding his nunc pro tunc claim for a time credit–and was
    advised to seek relief in federal court–exhaustion of administrative remedies would
    have been futile.
    Where a petition for writ of habeas corpus is brought pursuant to 
    28 U.S.C. § 2241
    , the exhaustion of administrative remedies is jurisdictional. See Winck v.
    England, 
    327 F.3d 1296
    , 1300 n.1 (11th Cir. 2003); Gonzalez v. United States, 
    959 F.2d 211
    , 212 (11th Cir. 1992) (per curiam). We must resolve jurisdictional issues
    before we address the merits of any underlying claims. See Steel Co. v. Citizens
    for a Better Env’t, 
    523 U.S. 83
    , 93-102, 
    118 S. Ct. 1003
    , 1012-16, 
    140 L. Ed. 2d 210
     (1998). A ruling on subject matter jurisdiction is reviewed de novo, as is a
    denial of habeas relief under § 2241. See MacGinnitie v. Hobbs Group, LLC, 
    420 F.3d 1234
    , 1239 (11th Cir. 2005); Skinner v. Wiley, 
    355 F.3d 1293
    , 1294 (11th
    Cir.) (per curiam), cert. denied, 
    541 U.S. 1036
    , 
    124 S. Ct. 2112
    , 
    158 L. Ed. 2d 722
    2
    (2004).
    The Attorney General has the authority to determine what credit, if any, is
    due a prisoner for time served, and the Attorney General has delegated the right to
    make this determination to the BOP. See Rodriguez v. Lamer, 
    60 F.3d 745
    , 747
    (11th Cir. 1995); United States v. Lucas, 
    898 F.2d 1554
    , 1555-56 (11th Cir. 1990)
    (per curiam). A prisoner seeking credit against his sentence for time in custody
    must exhaust BOP administrative remedies, or else the district court has no
    jurisdiction to hear his claims. Lucas, 
    898 F.2d at 1556
    . The BOP has established
    regulations governing formal review of inmate complaints relating to any aspect of
    imprisonment. See id.; 
    28 C.F.R. §§ 542.10
    -.19. These regulations “set out the
    procedures that prisoners must pursue prior to seeking relief in a district court.”
    Lucas, 
    898 F.2d at 1556
    .1 The regulations include an appeals process that allows
    the BOP’s General Counsel to make the ultimate decision. See 
    28 C.F.R. § 542.15
    (a).
    Hicks does not dispute the Government’s claim that he failed to pursue fully
    the regulatory scheme outlined above. Rather, he contends that (1) the
    Government waived any failure to exhaust on his part by addressing the merits of
    1
    Although the regulations have been revised since Lucas, we do not believe these
    revisions render Lucas’s description of the BOP regulatory scheme any less accurate. See, e.g.,
    Administrative Remedy Program, 
    59 Fed. Reg. 50,179
     (Oct. 3, 1994) (proposed rule); 
    61 Fed. Reg. 86
     (Jan. 2, 1996) (final rule) (codified at 28 C.F.R. pt. 542).
    3
    his case, and (2) in any event, exhaustion would have been futile and was therefore
    unnecessary. Given our precedent that the exhaustion requirement in § 2241 cases
    such as Hicks’s is jurisdictional, whether he may even assert a waiver or futility
    exception to the requirement is questionable.2 Assuming, without deciding, that
    Hicks may indeed argue these exceptions, his arguments prove unavailing. The
    Government did not waive the issue of administrative exhaustion by arguing
    alternatively that Hicks’s claims failed on the merits. See Fed. R. Civ. P. 8(e)
    (permitting the assertion of alternative and even inconsistent defenses).
    With respect to futility, Hicks notes that he sent several letters concerning
    his nunc pro tunc requests to a BOP official, a Regional Inmate Systems
    Administrator (“RISA”). According to Hicks, the RISA explained that the BOP
    could not grant the relief Hicks sought, and indicated that Hicks would have to go
    federal court for such relief. We are not persuaded that Hicks’s correspondence
    2
    Lucas concluded that the exhaustion requirement in § 2241 cases was jurisdictional
    after examining 
    18 U.S.C. § 3585
     and its predecessor, 18 U.S.C § 3568. See 
    898 F.2d at
    1554-
    56. We have reasoned that “[a]lthough judicially developed exhaustion requirements might be
    waived for discretionary reasons by courts, statutorily created exhaustion requirements bind the
    parties and the courts.” Richardson v. Reno, 
    162 F.3d 1338
    , 1374 (11th Cir. 1998) (emphasis
    added), judgment vacated on other grounds, 
    526 U.S. 1142
    , 
    119 S. Ct. 2016
    , 
    143 L. Ed. 2d 1029
    (1999). Failure to comply with statutory exhaustion requirements deprives a court of
    jurisdiction; thus “mandatory statutory exhaustion is not satisfied by a judicial conclusion that
    the requirement need not apply due to futility.” Id.; cf. Gallo Cattle Co. v. United States Dep’t of
    Agric., 
    159 F.3d 1194
    , 1197 (9th Cir. 1998) (“[W]hile judicially-created exhaustion
    requirements may be waived by the courts for discretionary reasons, statutorily-provided
    exhaustion requirements deprive the court of jurisdiction and, thus, preclude any exercise of
    discretion by the court.”). But see Rodriguez, 
    60 F.3d at 747
     (declining to address exhaustion in
    § 2241 context where Government did not raise issue of petitioner’s failure to exhaust).
    4
    with the RISA about Hicks’s nunc pro tunc requests demonstrates that full use of
    the administrative remedies available to Hicks would have been futile. The
    regulatory scheme includes a process for appeal to the Regional Director, and
    ultimately, the General Counsel. See 
    28 C.F.R. § 542.15
    (a). It is not clear that use
    of this process would have been meaningless. Cf. Alexander v. Hawk, 
    159 F.3d 1321
    , 1327 (11th Cir. 1998) (describing, in context of the Prison Litigation Reform
    Act, numerous policy reasons favoring exhaustion, including the avoidance of
    premature interruptions in the administrative process and allowing an agency to
    discover and correct its own errors). Indeed, compliance with BOP procedures
    helps ensure that, prior to judicial review, the BOP takes a coherent, definitive
    position on the merits of a petitioner’s complaint. Cf. Von Hoffburg v. Alexander,
    
    615 F.2d 633
    , 639 (5th Cir. 1980) (explaining that if the outcome of administrative
    proceedings is adverse to the plaintiff, “the court will at least have a definitive
    interpretation of the regulation and an explication of the relevant facts from the
    highest administrative body” in an entity’s internal appellate system).3 The district
    court properly dismissed Hicks’s petition for lack of subject matter jurisdiction.
    AFFIRMED.
    3
    In Bonner v. City of Prichard, 
    661 F.2d 1206
    , 1209 (11th Cir. 1981) (en banc), we
    adopting as binding precedent all decisions of the former Fifth Circuit handed down prior to the
    close of business on September 30, 1981.
    5