Gordon v. Yusuff

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
July 7, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk

No. 03-60822
Summary Calendar

MARCUS B. GORDON,

Petitioner-
Appellant,

versus

WARDEN YUSUFF,

Respondent-
Appellee.

------------------------------------------------------------
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 5:02-CV-585-BrSu
------------------------------------------------------------

Before SMITH, DeMOSS AND STEWART, Circuit Judges.

PER CURIAM:*

Marcus B. Gordon, federal prisoner # 10255-035, appeals the district court’s dismissal of his

28 U.S.C. § 2241 habeas petition for lack of jurisdiction based on his failure to exhaust his

administrative remedies. Gordon is serving 87 months’ imprisonment for his guilty plea conviction

to possess with intent to distribute cocaine base.

*
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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
 Gordon argues that the district court erred in denying his Motion to Correct or Modify the

Record. The additional documents repeat the assertions made in other documents filed in the record.

Thus, the district court did not err in finding that the documents were immaterial to the parties and

in denying the motion to modify the record. FED. R. APP. P. 10.

Gordon argues that he exhausted all available remedies and that his administrative appeal

should not have been dismissed as untimely because he was not provided with all the necessary

paperwork from prison officials.

Although the record reflects that Gordon had been attempting to obtain the response from

the regio nal office and continued to attempt to obtain it after his appeal was rejected, there is no

indication in the record that, after receiving the rejection notice, he provided the Cent ral Office in

Washington any furt her explanation for filing an untimely appeal. Because Gordon failed to

demonstrate that he had pursued all administrative remedies available to him, the district court did

not err in dismissing the petition for lack of jurisdiction based on a failure to exhaust administrate

remedies. United States v. Wilson, 503 U.S. 329, 335-36 (1992); Fuller v. Rich, 11 F.3d 61, 62 (5th

Cir. 1994).

Further, Gordon failed to demonstrate that he is entitled to a credit on his federal sentence

during the time for which he received credit on his state sentence. See 18 U.S.C. § 3585(b); United

States v. Dovalina, 711 F.2d 737, 740 (5th Cir. 1983).

Gordon’s motion to modify the record on appeal is DENIED because this court generally

does not consider new evidence on appeal. See Theriot v. Parish of Jefferson, 185 F.3d 477, 491

n.26 (5th Cir. 1999). Gordon’s motion to expedite appeal is DENIED as moot. The respondent’s

motion to supplement the record is also DENIED as moot. AFFIRMED.

-2-