United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS January 19, 2005
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 04-10780
Summary Calendar
OSCAR ADOLFO MONTOYA,
Petitioner-Appellant,
versus
L. M. FLEMING, Warden, Federal Medical Center Forth Worth,
Respondent-Appellee.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:03-CV-1488-A
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Before GARZA, DeMOSS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Oscar Adolfo Montoya, a federal prisoner (# 19530-050) and
Colombian national, appeals the district court’s dismissal of his
pro se 28 U.S.C. § 2241 habeas petition, without prejudice, for
failure to exhaust administrative remedies.
Montoya argued in his petition that the improper issuance of
an Immigration and Naturalization Service (“INS”) detainer in
2000 prevented him from participating in various rehabilitative
and early-release programs offered by the Bureau of Prisons
(“BOP”). The primary program cited by Montoya is a 500-hour
drug-abuse-treatment program (“DAP”), the completion of which
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
No. 04-10780
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makes an inmate eligible for a sentence reduction of up to one
year. See Warren v. Miles, 230 F.3d 688, 690 (5th Cir. 2000);
18 U.S.C. § 3621(e). Montoya does not deny that he has not
exhausted BOP administrative remedies, but he does argue that
attempting to do so would be futile because the warden at his
prison is not “empowered” to lift the INS detainer.
A federal prisoner must “exhaust his administrative remedies
before seeking habeas relief in federal court under 28 U.S.C.
§ 2241.” Fuller v. Rich, 11 F.3d 61, 62 (5th Cir. 1994); see
Rourke v. Thompson, 11 F.3d 47, 49 (5th Cir. 1993). “‘Exceptions
to the exhaustion requirement are appropriate where the available
administrative remedies either are unavailable or wholly
inappropriate to the relief sought, or where the attempt to
exhaust such remedies would itself be a patently futile course of
action.’” Fuller, 11 F.3d at 62 (citation omitted). The
petitioner bears the burden of showing the futility of
exhaustion. Id.
Montoya has cited no statute or administrative rule or
regulation that explicitly excludes from participation in the
various prison programs inmates who have INS detainers. The
regulatory materials reviewed by this court suggest that Montoya
is not categorically excluded from participation in such programs
and that the BOP and his warden have some degree of discretion as
to whether he may participate. See, e.g., 28 U.S.C.
§ 550.58(a)(1)(iv) (2004). Montoya has not established, as a
matter of law, that exhaustion would be futile. Accordingly, we
AFFIRM the dismissal of Montoya’s 28 U.S.C. § 2241 petition.
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Montoya has abandoned any challenge to the district court’s
conclusion that it lacked jurisdiction over his claims against
the Attorney General and the INS. See Yohey v. Collins, 985 F.2d
222, 224-25 (5th Cir. 1993); FED. R. APP. P. 28(a)(9).
AFFIRMED.