FILED
United States Court of Appeals
Tenth Circuit
February 12, 2014
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
HAROLD JEROME THORNTON,
Petitioner - Appellant,
v. No. 13-1433
D. Colorado
C. DANIELS, Warden, (D.C. No. 1:13-CV-00960-LTB)
Respondent - Appellee.
ORDER AND JUDGMENT *
Before KELLY, ANDERSON, and BACHARACH, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination
of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 32.1.
Applicant and appellant, Harold Jerome Thornton, proceeding pro se,
appeals the denial of his application for a writ of habeas corpus pursuant to 28
U.S.C. § 2241. He also requests permission to proceed on appeal in forma
pauperis. For the following reasons, we affirm the district court’s denial of his
motion, and we deny his request to proceed in forma pauperis.
BACKGROUND
Mr. Thornton is a prisoner in the custody of the United States Bureau of
Prisons, currently housed at the United States Penitentiary (“USP”) in Jonesville,
Virginia. This appeal stems from an Incident Report issued to Mr. Thornton
while he was housed at the USP in Allenwood, Pennsylvania. While there, Mr.
Thornton was issued Incident Report No. 2156390, in which he was charged with
possessing two weapons in his cell. At the Discipline Hearing Officer (“DHO”)
hearing, Mr. Thornton pled guilty to the charge. On June 8, 2011, the DHO
imposed a sanction of, inter alia, forfeiture of forty days of good time credits.
The primary issue in this case is whether Mr. Thornton exhausted his
administrative remedies in relation to this Incident Report and resulting sanctions.
On or about November 4, 2011, Mr. Thornton attempted to file with the Regional
Director an appeal of his DHO conviction following the Incident Report. As we
discuss more fully, infra, this was late, inasmuch as an appeal from the June 8,
2011, DHO decision was due within twenty days. On November 8, 2011, the
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appeal (denominated AR 663926-RI) was rejected because, inter alia, Mr.
Thornton failed to attach a copy of the DHO Report or otherwise identify the
charges and the date of the DHO action he was attempting to appeal. He was
given ten days in which to resubmit his appeal.
Instead of resubmitting his appeal, on November 9, 2011, Mr. Thornton
attempted to appeal from the Regional Director’s rejection of AR 663926-R1 to
the Central Office. On November 17, 2011, the Central Office rejected the appeal
on the ground that Mr. Thornton was required first to file a completed BP-10 form
with the Regional Office. He was advised to resubmit his appeal to the Regional
Director for review and determination, and to provide the Regional Director with
a copy of the DHO Report and/or identify the charges and the date of the DHO
action and sanctions.
On December 2, 2011, Mr. Thornton resubmitted his appeal to the Regional
Director. This appeal (denominated AR 663926-R2) was rejected on procedural
grounds as untimely. Mr. Thornton was also advised that, in view of its
untimeliness, he needed to provide verification by the BOP staff of the reason or
reasons the appeal was untimely.
On January 27, 2012, Mr. Thornton attempted to appeal the rejection of AR
663926-R2 to the Central Office. The Central Office, in turn, rejected the appeal
(in a document denominated AR 663926-A2) on the ground that Mr. Thornton
needed to submit his appeal first to the Regional Office for its decision, and to
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provide the Regional Office with a copy of the DHO report and/or identify the
charges and date of the DHO action.
More than a year later, on March 18, 2013, Mr. Thornton attempted to
refile AR 663926-A2 at the regional level. This appeal (designated AR 663926-
R3) was rejected on procedural grounds as untimely, and Mr. Thornton was
advised that he had failed to follow the instructions given to him previously to
provide staff verification for his untimely appeal. Mr. Thornton has not
attempted to resubmit AR 663926-R3 at any level of the administrative process.
In the meantime, on November 8, 2011, Mr. Thornton attempted to file
directly with the Central Office a second administrative remedy challenging the
DHO’s findings in the original Incident Report 2156390. That administrative
remedy was designated AR 665083-A1. This appeal was rejected on procedural
grounds because he submitted the remedy to the wrong level or office. Mr.
Thornton was advised that he must “first file a BP-10 with the regional office.”
Lundy Decl. at ¶ 19; R. Vol. I at 75. Mr. Thornton did not resubmit AR 665083-
A1 at any level of administrative review.
Mr. Thornton then filed with the federal district court his application for a
writ of habeas corpus, pursuant to 28 U.S.C. § 2241, followed by an amended
application. At the time he initiated this habeas action, Mr. Thornton was
incarcerated at USP Florence in the District of Colorado.
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In his amended § 2241 habeas application, Mr. Thornton asserted three
claims. In claims one and two, he challenged his disciplinary conviction in
connection with Incident Report No. 2156390. He alleged that: he had been
issued a forged incident report; he had been denied an adequate investigation into
the disciplinary charge; he had been forced to admit his guilt; he had been denied
a staff representative at his disciplinary hearing; and he had been found guilty by
a biased DHO. In claim three, Mr. Thornton alleged that his underlying criminal
sentence was enhanced unlawfully by prior convictions because the prosecution
had failed to comply with the procedural requirements of 21 U.S.C. § 851.
The government filed a response to Mr. Thornton’s amended habeas
application; Mr. Thornton declined to file a reply.
The district court dismissed the habeas application. The court dismissed
claims one and two for failure to exhaust administrative remedies. The court
dismissed claim three for lack of jurisdiction, on the ground that Mr. Thornton
had an adequate and effective remedy in 28 U.S.C. § 2255. This appeal followed.
DISCUSSION
“We review the district court’s dismissal of a § 2241 habeas petition de
novo.” Garza v. Davis, 596 F.3d 1198, 1203 (10th Cir. 2010). As we have stated
before, “[t]he exhaustion of available administrative remedies is a prerequisite for
§ 2241 habeas relief, although we recognize that the statute itself does not
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expressly contain such a requirement.” Id.; see Williams v. O’Brien, 792 F.2d
986, 987 (10th Cir. 1986) (per curiam) (noting that “judicial intervention is
usually deferred until administrative remedies have been exhausted”). “A narrow
exception to the exhaustion requirement applies if a petitioner can demonstrate
that exhaustion is futile.” Garza, 596 F.3d at 1203.
As the district court explained, consistent with our Garza decision, Bureau
of Prisons (“BOP”) regulations “require a prisoner to attempt informal resolution
of a complaint and, if that fails, to submit a formal request for an administrative
remedy to the institution.” Id. at 1204; see 28 C.F.R. §§ 542.13-14. The inmate
must submit “a formal written Administrative Remedy Request . . . [within] 20
calendar days following the date on which the basis for the Request occurred.”
28 C.F.R. § 543.14(a). “If the inmate does not obtain a satisfactory resolution
from the institution itself, he then may file a regional appeal followed by a
national appeal.” Garza, 596 F.3d at 1204; see 28 C.F.R. § 542.15(a). An inmate
has twenty calendar days to appeal a decision to the Regional Director. 28 C.F.R.
§ 542.15(a). An inmate “who is not satisfied with the Regional Director’s
response may submit an Appeal on the appropriate form (BP-11) to the General
Counsel within 30 calendar days of the date the Regional Director signed the
response.” 28 C.F.R. § 542.15(a).
If an inmate fails to comply with the procedural requirements of the
administrative remedy process, a request may be rejected at any stage of the
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process. Id. § 542.17(a). When a submission is rejected, the inmate is given
written notice as to the reason for the rejection, and if the defect is correctable,
the inmate is given a reasonable extension of time to correct the defect and
resubmit the appeal. Id. § 542.17(b). If an appeal is rejected and the inmate is
not given the opportunity to correct the defect, the inmate may appeal the
rejection to the next level of appeal. Id. § 542.17(c). The coordinator at the next
appeal level may affirm the rejection, direct it to be submitted at the lower level,
or accept it for filing. Id.
As indicated, an inmate has twenty days to appeal the DHO’s decision to
the Regional Director. 28 C.F.R. § 542.14(a). After finding that Mr. Thornton
committed the acts charged in Incident Report 2156390, the DHO sanctioned Mr.
Thornton on June 8, 2011. Mr. Thornton was accordingly required to appeal the
DHO’s decision by June 28, 2011. BOP records indicate that Mr. Thornton did
not submit his appeal until November 4, 2011, some five months later. He
accordingly failed to timely commence the exhaustion of his remedies.
Furthermore, as the above factual statement indicates, Mr. Thornton’s belated
November 4 appeal also failed to include a copy of the DHO Report or identify
the action he was appealing.
He did, however, make efforts to belatedly exhaust his remedies. As
indicated, his initial attempted appeal of the DHO sanction was filed some five
months late, and omitted required information. The Regional Director rejected
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the appeal on November 8, 2011, because Mr. Thornton failed to provide the
Regional Office with a copy of the DHO Report or otherwise identify the charges
and dates of the DHO action. He was given ten days to resubmit his appeal, but
failed to do so.
Instead of resubmitting his appeal with the correct information, Mr.
Thornton attempted to appeal the Regional Director’s rejection of AR 663926-R1,
but the Central Office, in turn, rejected his appeal, and Mr. Thornton was again
told he needed to provide a copy of the DHO Report or to identify the charges and
date of the DHO’s action. On December 2, 2011 (long after the expiration of the
ten-day-period he had been given in which to resubmit to the Regional Director
his rejected appeal), Mr. Thornton did resubmit his appeal (AR 663926-R2) to the
Regional Director. It was again rejected, this time as untimely and without
verified explanation for its untimeliness. He then attempted to appeal the
rejection of AR 663926-R2 to the Central Office, but the Central Office rejected
the appeal, again telling Mr. Thornton that he needed to provide a copy of the
DHO report and/or provide more information about the DHO action. It appears
that Mr. Thornton has never provided that information to the Regional Director or
the Central Office. Furthermore, although he was repeatedly asked to provide
some excuse or reason for his untimely filings, with verification by BOP staff, he
never did so.
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The Supreme Court has stated that “proper exhaustion of administrative
remedies . . . ‘means using all steps that the agency holds out, and doing so
properly.” Woodford v. Ngo, 548 U.S. 81, 90 (2006). Mere “good-faith efforts
to comply with grievance procedures . . . do[] not excuse failure to exhaust.”
Bridgeforth v. Workman, No. 10-7059, 410 Fed. Appx. 99, 100-01 (2010 WL
5018240, at *1 (10th Cir. Dec. 9, 2010) (unpublished). 1 The record in this case
shows that Mr. Thornton failed to comply with the BOP’s grievance procedures.
And while we afford Mr. Thornton’s filings a liberal construction, we will not
excuse his failure to comply with the rules of procedure or the regulatory
grievance structure. See Ogden v. San Juan Cnty, 32 F.3d 452, 455 (10th Cir.
1994). 2 Accordingly, we agree with the district court’s conclusion that Mr.
Thornton failed to exhaust his administrative remedies.
As indicated above, a “narrow exception to the exhaustion requirement
applies if an applicant can demonstrate that exhaustion is futile.” Garza, 596 F.3d
at 1203. Mr. Thornton argues that “Case Manager T. Burke would not provide
the proper forms for grievance.” Appellant’s Op. Br. at 5. Nonetheless, he
1
While we do not ordinarily cite unpublished opinions, we cite this
unpublished opinion because it correctly states circuit precedent.
2
The Supreme Court has affirmed the dismissal of an FTCA claim by a pro
se plaintiff who failed to exhaust administrative remedies. See McNeil v. United
States, 508 U.S. 106, 113 (1993) (“[W]e have never suggested that procedural
rules in ordinary civil litigation should be interpreted so as to excuse mistakes by
those who proceed without counsel.”).
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attached to his amended habeas application a copy of a November 28, 2011,
Memorandum for Administrative Remedy File, which was prepared by his unit
manager and which states that the manager had provided Mr. Thornton with
“documents” he needed for his appeal of “incident report number 2156390.”
Memorandum, attached to Petition for Writ of Habeas Corpus. He never has
shown that he presented to any appellate body the materials or information which
he was repeatedly told he needed to provide, nor has he provided any evidence or
record support for any claim that he was prevented from providing such materials
or information.
In any event, we agree with the district court that Mr. Thornton failed to
establish that the futility exception to the exhaustion requirement applies to his
case. The district court properly dismissed the first two claims of Mr. Thornton’s
amended habeas application.
Mr. Thornton’s third (and final) claim in his amended petition asserted that
the sentencing court unlawfully enhanced his sentence with prior convictions and
failed to comply with the procedural requirements of 21 U.S.C. § 851. The
district court dismissed this claim for lack of jurisdiction.
As the Respondent points out, Mr. Thornton does not challenge this
conclusion by the district court. Rather, he raises a number of other unrelated
issues, none of which he raised below. He has accordingly waived any objection
to the district court’s disposition of claim three in his amended habeas
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application. Furthermore, we need not address the issues Mr. Thornton raises for
the first time in his appellate brief. See Fischer v. Forestwood Co., Inc., 525 F.3d
972, 978 n.2 (10th Cir. 2008) (“[A]rguments not raised in the district court are
waived on appeal) (citing Rosewood Servs., Inc. v. Sunflower Diversified Servs.,
Inc., 413 F.3d 1163, 1167 (10th Cir. 2005)).
CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s Order of
Dismissal, and we DENY Mr. Thornton’s request to proceed on appeal in forma
pauperis.
ENTERED FOR THE COURT
Stephen H. Anderson
Circuit Judge
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