Jason Tiffin v. Warden Lewisburg USP , 589 F. App'x 609 ( 2014 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 13-3875
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JASON B. TIFFIN,
Appellant
v.
USP – LEWISBURG WARDEN
____________________________________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(M.D. Pa. Civil Action No. 13-cv-00851)
District Judge: Honorable William W. Caldwell
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
October 17, 2014
Before: FISHER, KRAUSE and VAN ANTWERPEN, Circuit Judges
(Opinion filed: October 31, 2014)
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OPINION
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PER CURIAM
Jason Tiffin, a federal prisoner proceeding pro se, appeals an order of the United
States District Court for the Middle District of Pennsylvania dismissing his petition for a
writ of habeas corpus pursuant to 28 U.S.C. § 2241. For the reasons that follow, we will
affirm the judgment of the District Court.
In November 2005, Tiffin was arrested in the State of Washington after police
pursued a car in which he was a passenger and found him wearing body armor and
possessing shot gun shells. While released on bond, Tiffin was found in possession of a
firearm. He was taken into custody and convicted in state court of bail jumping. In 2007,
Tiffin was convicted in federal court on charges of felon in possession of a firearm, felon
in possession of ammunition, and felon in possession of body armor arising from the
November 2005 incident. He was sentenced to ten years in prison. That same year,
Tiffin was released from state custody to serve his federal sentence.
In 2013, Tiffin filed a complaint in District Court seeking relief pursuant to 28
U.S.C. § 2241 or Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics,
403 U.S. 388 (1971). Tiffin challenged the computation of his sentence. He claimed that
his state and federal sentences should run concurrently, or that the state prison in which
he was confined should be designated for service of his federal sentence, as discussed in
Barden v. Keohane, 921 F.2d 476 (3d Cir. 1990). Tiffin also sought credit for time
served at a Federal Detention Center. In response, the Government argued that the
District Court should dismiss Tiffin’s petition for failure to exhaust administrative
remedies or deny relief because his sentence has been calculated properly.
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The Magistrate Judge treated Tiffin’s filing as a § 2241 habeas petition and
concluded that he had failed to exhaust his available administrative remedies. The
District Court adopted the Magistrate Judge’s report and dismissed Tiffin’s habeas
petition. This appeal followed.
We have jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review of
the District Court’s legal conclusions and apply a clearly erroneous standard to its factual
findings. Cradle v. United States, 290 F.3d 536, 538 (3d Cir. 2002) (per curiam).
Tiffin’s claims are cognizable under § 2241. Barden, 921 F.2d at 478. Federal
prisoners are required to exhaust their administrative remedies before filing a § 2241
habeas petition. Moscato v. Federal Bureau of Prisons, et al., 98 F.3d 757, 760 (3d Cir.
1996). A failure to satisfy the procedural rules of the Bureau of Prisons’ administrative
process constitutes a procedural default. Id. If such a default renders the administrative
process unavailable, review of a habeas claim is barred absent a showing of cause and
prejudice. Id. at 761.
The record reflects that the Bureau of Prisons has a three-step administrative
remedy procedure that applies after an unsuccessful informal attempt at resolving a
complaint. An inmate must submit an administrative remedy form to the prison Warden.
If the inmate is not satisfied with the Warden’s response, he may appeal to the Regional
Director. The inmate may then appeal to the Central Office of the Bureau of Prisons.
Each step must be completed within a prescribed time. See Resp. to Habeas Pet. at Ex. 1.
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Tiffin submitted an administrative remedy request seeking credit towards his
federal sentence for time served in state and federal custody. The Warden denied the
request because the credit Tiffin sought is barred by statute. The Warden, however,
noted that Tiffin’s request had been forwarded to the Designation and Sentence
Computation Center (“DSCC”) to consider whether the state prison in which he served
his sentence should be designated for service of his federal sentence. See Barden, 921
F.2d at 484 (holding prisoner was entitled to such review).
Tiffin appealed to the Regional Director, who responded that his file was
forwarded to the DSCC, that the results were still pending, and that he would be notified
when a determination had been made. Tiffin appealed to the Central Office of the Bureau
of Prisons, but on December 3, 2012, his appeal was rejected for failure to include a copy
of his institution administrative remedy request. Tiffin was afforded 15 days to resubmit
the appeal in proper form. Tiffin did not do so. Instead, he filed his habeas petition in
District Court.
As recognized by the District Court, Tiffin did not complete his final level appeal
and thus did not fully exhaust his administrative remedies. The 15-day period to
resubmit his appeal has long passed. Under Moscato, his failure to satisfy the Bureau of
Prison’s rules constitutes a procedural default, at least with respect to any claim that was
not forwarded to the DSCC for review.1
1
The record does not include a decision by the DSCC on Tiffin’s claim. The Government
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Tiffin has not established cause excusing his procedural default. Tiffin argued
below that he did everything he could but he was precluded from fully exhausting his
remedies as a result of the prison staff’s failure to mail his documents. Tiffin submitted
documents reflecting that his second level appeal to the Regional Office was initially not
received. Tiffin’s Unit Manager, however, rectified the problem by asking that Tiffin be
allowed to proceed outside the applicable time frames and verifying that Tiffin gave staff
his appeal for mailing. Tiffin’s appeal to the Regional Office was considered. These
circumstances do not establish cause excusing the procedural default, which occurred at
the final level of review, not when Tiffin appealed to the Regional Office.
Tiffin further argued in District Court that his final level appeal “never made it,”
that a Unit Manager at USP-Coleman was supposed to “give [him] a memo to refile,” and
that he “fought for weeks and weeks to get this.” Traverse at 1. Tiffin stated that he was
then transferred to USP-Lewisburg, that he was unable to get his counselor there to
follow up with staff at USP-Coleman, and that, as a result, he filed his complaint in
District Court.
To the extent Tiffin contends that the Bureau of Prisons Central Office did not
receive his final level appeal, the record reflects that his appeal was received. Tiffin has
submitted the declaration of a DSCC employee providing that this is not a case where
designation of concurrent service is warranted, but the status of the DSCC’s review is not
clear. Tiffin also does not contend that he exhausted his remedies through review by the
DSCC. His claim under Barden was thus properly dismissed for failure to exhaust,
although the record does not reflect that he procedurally defaulted this claim.
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not squarely addressed the evidence submitted by the Government showing that his final
level appeal was rejected for failure to include documents, other than stating that the
evidence is a lie. See Motion for Reconsideration at 1. Tiffin appears to fault the prison
for “blocking” him by failing to give him certain documents, but his assertions are not
specific and he has not shown that his failure to resubmit his appeal might have been
attributable to prison staff. Tiffin also argues on appeal that he “never heard back” after
he submitted his final level appeal, see Informal Brief at 2-3, but he appears to assert the
same with respect to his appeal to the Regional Office, and that assertion is belied by the
record. In short, Tiffin’s filings are insufficient to establish cause for his procedural
default.
Accordingly, we will affirm the judgment of the District Court.
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