Alberto Concepcion v. Warden Allenwood FCI ( 2019 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 18-3035
___________
ALBERTO CONCEPCION,
Appellant
v.
WARDEN ALLENWOOD FCI; WARDEN FORT DIX FCI; FEDERAL BUREAU OF
PRISONS
____________________________________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil Action No. 3:17-cv-02171)
District Judge: Honorable James M. Munley
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
January 28, 2019
Before: KRAUSE, SCIRICA and NYGAARD, Circuit Judges
(Opinion filed: February 6, 2019)
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OPINION *
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PER CURIAM
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
Pro se appellant Alberto Concepcion appeals the District Court’s order denying his
petition under 28 U.S.C. § 2241. For the reasons detailed below, we will affirm the
District Court’s judgment.
During a search of Concepcion’s cell, prison guards found a cell phone and a
switchblade. As punishment, a hearing officer sanctioned Concepcion to a loss of 80
days of good conduct time. Concepcion appealed to the Regional Office, which rejected
his appeal because it lacked certain required pages. The Regional Office informed
Concepcion that he could re-file his appeal in the proper form within ten days of the date
of the order, July 21, 2017. Concepcion re-filed on August 11, 2017, and the Regional
Office denied the appeal as untimely. Concepcion took no further administrative appeal.
Instead, he filed a § 2241 petition in the District Court. He alleged that the
contraband did not belong to him and that there had been various procedural problems
with his disciplinary hearing. In response, the Government argued that Concepcion had
not exhausted his administrative remedies. The District Court agreed with the
Government and denied Concepcion’s petition. Concepcion filed a timely notice of
appeal.
We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253(a). We exercise
plenary review over the District Court’s legal conclusions and review its factual findings
for clear error. See Denny v. Schultz, 708 F.3d 140, 143 (3d Cir. 2013). A challenge to
the execution of a sentence, including the sanction of loss of good conduct time, is
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properly brought by a federal prisoner under § 2241. See Queen v. Miner, 530 F.3d 253,
254 n.2 (3d Cir. 2008) (per curiam).
We agree with the District Court’s analysis of this case. A federal prisoner must
exhaust his administrative remedies before petitioning for a writ of habeas corpus
pursuant to § 2241. See Moscato v. Fed. Bureau of Prisons, 98 F.3d 757, 760 (3d Cir.
1996). Proper exhaustion requires that a prisoner present his claim at every
administrative level. See generally id. at 761. The relevant regulations provide that an
appeal from a hearing officer’s decision should be taken to the Regional Director. 28
C.F.R. § 542.14(d)(2). If the prisoner is not satisfied with the Regional Director’s
decision, he can appeal to the General Counsel, which “is the final administrative
appeal.” Id. at § 542.15(a).
Here, as the District Court explained, Concepcion failed to take an appeal to the
General Counsel, and therefore did not exhaust his administrative remedies. See
Moscato, 98 F.3d at 760 (prisoner who did not file a timely appeal to the General Counsel
had procedurally defaulted his claim). Because the time for seeking such review has
expired, Concepcion’s claim is procedurally defaulted. Id. Therefore, judicial review is
barred unless he can demonstrate cause and prejudice. Id. at 761-62
Concepcion argues that his failure to exhaust should be excused because the
Regional Director wrongly found his appeal untimely. However, he could have raised
that argument in an appeal to the General Counsel. See generally id. (explaining that one
of the reasons for requiring exhaustion is that “providing agencies the opportunity to
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correct their own errors fosters administrative autonomy”). Likewise, the Regional
Director’s alleged failure to respond to his appeal did not prevent Concepcion from
seeking further review; the regulations specifically provide that “[i]f the inmate does not
receive a response within the time allotted for reply . . . the inmate may consider the
absence of a response to be a denial at that level.” 28 C.F.R. § 542.18. 1
Accordingly, we will affirm the District Court’s judgment.
1
The Regional Director is required to respond to an appeal within 30 calendar days,
although that time can be extended an additional 30 days. 28 C.F.R. § 542.18.
4