Gregory Alan Nichols v. Warden, FCC Coleman - Low , 458 F. App'x 844 ( 2012 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 11-11528 ELEVENTH CIRCUIT
Non-Argument Calendar FEBRUARY 23, 2012
________________________ JOHN LEY
CLERK
D.C. Docket No. 5:10-cv-00288-RAL-TGW
GREGORY ALAN NICHOLS,
Petitioner-Appellant,
versus
WARDEN, FCC COLEMAN - LOW,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(February 23, 2012)
Before DUBINA, Chief Judge, PRYOR and KRAVITCH, Circuit Judges.
PER CURIAM:
Petitioner Gregory Alan Nichols, a pro se prisoner, appeals the district
court’s denial of his 28 U.S.C. § 2241 habeas corpus petition. On appeal, Nichols
argues that the Bureau of Prisons (“BOP”) acted arbitrarily and capriciously in
denying his request for a nunc pro tunc designation, and that the district court
erred in not dismissing his petition without prejudice so that he could pursue
further administrative relief.
Although the district court, in denying Nichols’s § 2241 petition, considered
the merits of his nunc pro tunc request, we must first decide whether the district
court had jurisdiction over a final administrative decision from the BOP. We
review de novo the availability of habeas relief under § 2241. Dohrmann v.
United States, 442 F.3d 1279, 1280 (11th Cir. 2006). In addition, we are
“obligated to inquire into subject matter jurisdiction sua sponte whenever it may
be lacking.” Bochese v. Town of Ponce Inlet, 405 F.3d 964, 975 (11th Cir. 2005)
(internal quotation marks omitted). Jurisdiction “cannot be waived or otherwise
conferred upon the court by the parties.” Id. (internal quotation marks omitted).
Pursuant to the BOP’s Administrative Remedy Program, an inmate can seek
formal review of any issue relating to an aspect of his confinement. 28 C.F.R.
§ 542.10. First, the inmate must file a written request with the warden at the
institution of his confinement within 20 days of the date on which the basis for his
request occurred. Id. § 542.14. If the warden denies the prisoner’s request, the
prisoner then has 20 days from the denial to appeal to the BOP’s Regional
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Director. Id. § 542.15(a). If the inmate is not satisfied with the Regional
Director’s response, the inmate may then appeal to the BOP General Counsel at
the BOP’s Central Office within 30 days of the Regional Director’s signed
response. Id. The appeal to the General Counsel is the final step in the
Administrative Remedy Program. Id. “[P]risoners seeking habeas relief,
including relief pursuant to § 2241, are subject to administrative exhaustion
requirements.” Skinner v. Wiley, 355 F.3d 1293, 1295 (11th Cir. 2004).
Exhaustion of administrative remedies is jurisdictional in § 2241 cases. Gonzalez
v. United States, 959 F.2d 211, 212 (11th Cir. 1992).
We conclude from the record that the district court did not have jurisdiction
over any final decision from the BOP because Nichols did not file an appeal with
the BOP’s General Counsel, the final step in the administrative process.
Therefore, Nichols did not exhaust his administrative remedies. Because
exhaustion is jurisdictional in § 2241 decisions, we are compelled to vacate the
district court’s order and remand this case with instructions to the district court to
dismiss Nichols’s § 2241 petition.
VACATED AND REMANDED.
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