Keys v. United States Department of Justice , 136 F. App'x 313 ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 04-15418 JUNE 22, 2005
THOMAS K. KAHN
Non-Argument Calendar
CLERK
________________________
D.C. Docket No. 04-22319-CV-PCH
BOBBY EARL KEYS,
Petitioner-Appellant,
versus
UNITED STATES DEPARTMENT OF JUSTICE,
UNITED STATES ATTORNEY GENERAL, Alberto Gonzales, et al.,
Respondents-Appellees.
__________________________
Appeal from the United States District Court for the
Southern District of Florida
_________________________
(June 22, 2005)
Before TJOFLAT, ANDERSON and WILSON, Circuit Judges.
PER CURIAM:
Petitioner appeals a district court judgment denying his petitioner for a writ
of habeas corpus, which he brought under 28 U.S.C. § 2241. His petition
challenges the Bureau of Prisons’s application of good-time credit on the ground
that the Bureau is ignoring the statutory command, see 18 U.S.C. § 3624(b), that a
prisoner is eligible for 54 days of such credit, by awarding only 47 days of credit.
Prisoners seeking habeas relief pursuant to § 2241 are subject to
administrative exhaustion requirements. Skinner v. Wiley, 355 F.3d 1293, 1295
(11th Cir.), cert denied, 124 S.Ct. 2112 (2004). In the civil context, the inadequate
nature of an administrative remedy does not preclude the application of a
mandatory exhaustion requirement. See Alexander v. Hawk, 159 F.3d 1321,
1325-28 (11th Cir. 1998).
We have described the Administrative Remedy Program (“ARP”), 28 C.F.R.
§ 542.10, as follows:
The [BOP] . . . established regulations governing formal review of
inmate complaints relating to any aspect of imprisonment. See 28
C.F.R. §§ 542.10 to .16 (1989). These regulations . . . set out the
procedures that prisoners must pursue prior to seeking relief in the
district court.
...
If, and only if, the defendant has pursued his administrative remedy
may he seek relief in the district court.
United States. v. Herrera, 931 F.2d 761, 764 (11th Cir. 1991) (internal quotations
and citations omitted). In Herrera, after noting that exhaustion of administrative
remedies is jurisdictional and must be addressed, we held that, because the
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defendant had failed to pursue his administrative remedy, “[t]he district court was
without jurisdiction to entertain [the defendant’s] application for credit time.” Id.Petitioner failed to exhaust his administrative remedies with the Bureau of
Prisons, as required by the ARP, prior to filing his petition in the district court.
The court therefore lacked jurisdiction to consider the petition and should have
dismissed it. We accordingly vacate the district court’s judgment and remand the
case with instructions to dismiss the petition without prejudice so that petitioner
may exhaust his administrative remedies.
VACATED AND REMANDED.
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