                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                February 17, 2010
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                    Clerk of Court
                                 TENTH CIRCUIT


 PETER WOODRUFF,

               Petitioner - Appellant,

          v.                                             No. 09-1446
                                              (D. Ct. No. 1:09-CV-01672-ZLW)
 RON WILEY, Warden, Federal Prison                        (D. Colo.)
 Camp-Florence,

               Respondent - Appellee.


                            ORDER AND JUDGMENT *


Before TACHA, TYMKOVICH, and GORSUCH, Circuit Judges.


      After examining the briefs and the appellate record, this three-judge panel

has determined unanimously that oral argument would not be of material

assistance 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.

      Peter Woodruff, a federal prisoner proceeding pro se, appeals the district

court’s denial of his petition for a writ of habeas corpus under 28 U.S.C. § 2241.

We take jurisdiction under 28 U.S.C. §§ 1291 and 2253, and we AFFIRM the


      *
        This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
ruling of the district court.

                                I. BACKGROUND

       Mr. Woodruff is currently incarcerated at the Federal Prison Camp in

Florence, Colorado (“FPC-Florence”). He is serving a 135-month sentence for

possession with intent to distribute methamphetamine in violation of 21 U.S.C. §

841(b)(1)(A). His projected release date, with good-time credit, is May 13, 2014.

       In July 2009, Mr. Woodruff filed a § 2241 petition in the United States

District Court for the District of Colorado. In his petition, Mr. Woodruff alleges

that prison officials at FPC-Florence are categorically denying: (1) the review and

transfer of eligible “non pre-release inmates” 1 to Community Corrections Centers

(“CCC”) in violation of 18 U.S.C. § 3621(b); (2) a placement of more than six

months in a Residential Re-entry Center (“RRC”) for eligible “pre-release

inmates,” 2 as well as any other inmates, in violation of 18 U.S.C. §§ 3621(b) and

(e)(2)(B), 3624(c), and 42 U.S.C. § 17541(a)(2)(A) and (c)(2); and (3) a twelve-

month reduction in sentence and a twelve-month placement in an RRC facility for

graduates of the Residential Drug and Alcohol Program in violation of 18 U.S.C.

§ 3621(e)(2)(B) and 42 U.S.C. § 17541(a)(2)(A). The district court dismissed Mr.

Woodruff’s petition for failure to exhaust administrative remedies. He timely

       1
       Mr. Woodruff defines “non pre-release” inmates as inmates with more than
twelve months remaining on their sentences.
       2
      Mr. Woodruff defines “pre-release” inmates as inmates with twelve or
fewer months remaining on their sentences.

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filed this appeal.

                                 II. DISCUSSION

      In considering a district court’s dismissal of a § 2241 petition, we review

legal determinations de novo and findings of fact for clear error. United States v.

Eccleston, 521 F.3d 1249, 1253 (10th Cir. 2008). Before seeking relief under §

2241, federal prisoners must exhaust their administrative remedies. Williams v.

O’Brien, 792 F.2d 986, 987 (10th Cir. 1986). Exhaustion requirements exist to

give agencies, like the Bureau of Prisons (“BOP”), “an opportunity to correct

[their] own mistakes . . . before [they are] haled into federal court.” Woodford v.

Ngo, 548 U.S. 81, 89 (2006) (quotations omitted). An inmate must exhaust his

administrative remedies by “using all steps that the agency holds out, and doing

so properly.” Id. at 90 (quotations and emphasis omitted).

      BOP regulations establish a four-tiered administrative process to address

and resolve inmate grievances. See 28 C.F.R. § 542.10–542.16. First, an inmate

must present an issue of concern informally to prison staff in an effort to resolve

the issue. 28 C.F.R. § 542.13. If the inmate and staff cannot resolve the matter

informally, the inmate must file a formal written Administrative Remedy Request

at the institution at which the inmate is incarcerated. Id. § 542.14. If he is not

satisfied with the Warden’s response to his formal request, he may file appeals

first with the Regional Director and later with General Counsel. Id. § 542.15(a).

“Appeal to the General Counsel is the final administrative appeal.” Id.

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      Mr. Woodruff concedes that he has not followed the process outlined in the

BOP regulations and therefore has not exhausted his administrative remedies. He

argues, however, that the exhaustion requirement is inapplicable because: (1)

exhaustion would be futile; and (2) he is contesting the validity, rather than the

application, of BOP regulations.

      Exhaustion of administrative remedies is not required when it would be

futile. See Wilson v. Jones, 430 F.3d 1113, 1118 (10th Cir. 2005). “The futility

exception, however, is quite narrow.” Bun v. Wiley, No. 09-1289, 2009 WL

3437831, at *1 (10th Cir. Oct. 27, 2009). Mr. Woodruff argues that exhaustion

would be futile because prison officials at FPC-Florence categorically deny every

request. He cites two BOP memoranda in support of his contention. Far from

supporting his position, however, the memoranda require prison officials to make

all decisions regarding placement in a CCC or RRC on an individualized basis.

Furthermore, even if Mr. Woodruff was correct that the staff at FPC-Florence has

predetermined its response to any complaint, the regulations provide him with two

avenues of review outside the institution in which he is incarcerated. See 28

C.F.R. § 542.15. Thus, the futility exception does not excuse Mr. Woodruff’s

failure to exhaust his administrative remedies.

      Moreover, as this court has noted in a prior, unpublished decision, “a

prisoner [cannot] do away with the exhaustion requirement simply by framing his

habeas petition as an attack on a regulation’s validity rather than its application.”

                                         -4-
Torres-Villa v. Davis, No. 09-1366, 2009 WL 4071834, at *2 (10th Cir. Nov. 25,

2009) (addressing facts and arguments nearly identical to those presented in this

case). As we noted in Torres-Villa, because the regulations Mr. Woodruff is

challenging do not definitely prevent his transfer to a CCC or RRC, he was

obligated to exhaust the administrative process. Id.

                               III. CONCLUSION

      Because Mr. Woodruff has failed to show that he exhausted his

administrative remedies or that exhaustion would be futile, we AFFIRM the

ruling of the district court. Mr. Woodruff’s motion to proceed without

prepayment of fees is DENIED. Mr. Woodruff must immediately pay the unpaid

balance of his filing fees.

                                      ENTERED FOR THE COURT,



                                      Deanell Reece Tacha
                                      Circuit Judge




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