                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                  March 31, 2010
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                    Clerk of Court
                                  TENTH CIRCUIT


 WILLIAM STAPLES,

          Petitioner-Appellant,
                                                         No. 09-3267
 v.
                                               (D.C. No. 5:08-CV-03159-RDR)
                                                          (D. Kan.)
 CLAUDE CHESTER, Warden-USP
 Leavenworth,

          Respondent-Appellee.



                             ORDER AND JUDGMENT *


Before KELLY, BRISCOE, and HOLMES, Circuit Judges.


      Petitioner William Staples, who is currently an inmate in the United States

Penitentiary in Pollock, Louisiana, appeals from the district court’s dismissal of

his 28 U.S.C. § 2241 habeas petition. In that petition, Mr. Staples raised due-

process challenges to three Bureau of Prison (“BOP”) disciplinary proceedings


      *
             This Order and Judgment is not binding precedent, except under the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 Federal Rule of Appellate
Procedure 32.1 and 10th Circuit Rule 32.1.

      After examining the appellate record, this three-judge panel determined
unanimously that oral argument would not be of material assistance in the
determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1(G).
The case therefore is ordered submitted without oral argument.
against him, which resulted, in part, in the loss of good-time credits. The district

court dismissed the petition for failure to exhaust administrative remedies. The

court also concluded that, even if Mr. Staples properly had exhausted the BOP’s

administrative remedies, Mr. Staples was not entitled to habeas relief because he

was afforded due process in the BOP’s disciplinary proceedings. Exercising our

jurisdiction under 28 U.S.C.§ 1291, we AFFIRM.

I. Background

      William Staples filed a pro se petition for habeas relief pursuant to 28

U.S.C. § 2241. 1 Although he originally filed the petition in the Eastern District of

Kentucky, it was transferred to the District of Kansas where Mr. Staples was

incarcerated at the time that he filed the petition. In the petition, Mr. Staples

alleged that his due process rights were violated by three BOP disciplinary

proceedings against him and that he was given inaccurate advice concerning his

eligibility for transfer to a Residential Reentry Center (“RRC”). He requested

that the incident reports against him be expunged, that all sanctions against him

be overturned, and that he immediately be transferred to a RRC.

      Mr. Staples is serving a 200-month sentence for wire fraud and for being a

felon in possession of a firearm. His projected release date, taking into account

good-time credits, is October 18, 2019.

      1
            Because Mr. Staples is proceeding pro se, we liberally construe his
filings. Ledbetter v. City of Topeka, 318 F.3d 1183, 1187 (10th Cir. 2003) (citing
Haines v. Kerner, 404 U.S. 519, 520–21 (1972)).

                                          -2-
      The disciplinary proceedings challenged by Mr. Staples arose from three

separate incidents. The first incident, Incident Report Number 1664517, occurred

on October 29, 2007. Mr. Staples allegedly was involved in an altercation with

another inmate, during which Mr. Staples struck the inmate with a closed fist and

hit him with his cane. After an investigation, Mr. Staples was charged with

fighting with another person. The Unit Disciplinary Committee (“UDC”) held a

hearing where Mr. Staples denied that the incident had occurred. Rather than

resolve the charges, the UDC referred the matter to the Discipline Hearing Officer

(“DHO”) and provided Mr. Staples with a form detailing his rights in that forum,

including the right to request a staff representative and to call witnesses or to

present their written statements if the witnesses were unavailable. He requested a

specific BOP staff representative and two witnesses.

      At the DHO hearing, an alternative staff representative was assigned to Mr.

Staples due to the unavailability of the requested staff member. Although Mr.

Staples had requested that the staff member who reported the incident be called as

a witness, instead that staff member’s written statements were introduced into

evidence. Mr. Staples stated at the hearing that the incident report was false.

Although he admitted sending the other inmate a note after the alleged incident,

Mr. Staples denied that the note was an attempt to coerce the inmate into denying

that the incident had occurred. After considering all of the evidence, including a

written statement from Mr. Staples, the DHO determined that he was guilty of the


                                         -3-
charge and imposed sanctions upon him, including disciplinary segregation and

loss of good-time credits. The DHO signed the written report regarding this

disciplinary action on January 28, 2008, and a copy of the report was provided to

Mr. Staples on September 9, 2008.

      On October 30, 2007, in Incident Report Number 1661746, Mr. Staples was

charged with counterfeiting or forging a document or official paper and with

being in possession of anything not authorized: BOP staff had discovered Mr.

Staples in possession of an evening insulin-dependant diabetic pass to which he

was not entitled. After a hearing before the UDC, at which Mr. Staples

acknowledged that the report was true, the UDC referred the matter to the DHO.

At the DHO hearing, Mr. Staples waived his right to a staff representative and did

not request any witnesses. Mr. Staples again admitted that the report was true and

that he had been attempting to use the pass to be released early for meals. After

considering all of the evidence, the DHO determined that Mr. Staples was guilty

of the charge and imposed, inter alia, disciplinary segregation and loss of good-

time credits. The DHO signed the written report regarding this discipline on

December 10, 2007, and Mr. Staples received a copy the next day, on December

11, 2007.

      The third incident, Incident Report Number 1661747, also occurred on

October 30, 2007. An officer found a handmade screwdriver concealed in Mr.

Staples’s laundry bag during a property inventory, and Mr. Staples was charged


                                        -4-
with possession, manufacture, or introduction of a hazardous tool. After a

hearing before the UDC, at which Mr. Staples denied knowing about the tool, the

matter was referred to the DHO. Mr. Staples requested a specific staff

representative at the hearing, but due to that staff member’s unavailability, an

alternative staff representative was assigned. An inmate witness requested by Mr.

Staples appeared at the hearing and testified that everyone hangs their laundry

bags on their lockers, the laundry bag at issue did not belong to the witness, and

Mr. Staples always hangs his laundry bag on his locker. Mr. Staples provided a

written and oral statement declaring that it was not his tool, that the laundry bag

did not belong to him, and that someone must have set him up. After considering

all of the evidence, the DHO concluded that Mr. Staples was guilty of “Possession

of Anything Not Authorized,” a lesser offense with elements similar to those of

the original charge. The DHO imposed sanctions on Mr. Staples, including

disciplinary segregation and a loss of good-time credits. The DHO signed the

written report regarding this disciplinary action on January 28, 2008, and a copy

of the report was provided to Mr. Staples on September 9, 2008.

      Mr. Staples filed a regional appeal from the third disciplinary action against

him, Incident Report Number 1661747, on December 31, 2007. The grievance

was rejected, and Mr. Staples was advised to wait for a copy of the DHO’s written

report in order to appeal. On March 11, 2008, Mr. Staples attempted to appeal to

the central-office level, although it is not clear which incident he sought to


                                         -5-
appeal. Regardless, it was rejected because Mr. Staples had submitted his appeal

to the wrong level of the administrative-remedy process.

      Respondents filed a response with the district court and argued that the

petition should be dismissed because Mr. Staples had not exhausted his

administrative remedies. The district court agreed and dismissed the petition.

After noting that Mr. Staples “ha[d] not challenged the respondents’ description

of his use of the remedy procedure,” the court concluded that Mr. Staples had

failed to exhaust his administrative remedies. R. at 332–33 (Order, filed Sept. 3,

2009). In the alternative, the court held that “even if [it] reached a contrary

conclusion, petitioner would not be entitled to relief” because Mr. Staples

received the process to which he was due pursuant to Wolff v. McDonnell, 418

U.S. 539 (1974). Id. at 333. This appeal followed, and the district court granted

Mr. Staples’s motion to proceed in forma pauperis.

II. Discussion

      On appeal, Mr. Staples argues that the exhaustion of administrative

remedies would have been futile and that the district court erred in finding that

the BOP did not violate his due process rights by its actions related to the

disciplinary proceedings against him. 2 We need not reach the merits of his due-

      2
            Although Mr. Staples’s petition also contained an argument
concerning his eligibility for RRC placement, he explicitly abandoned this
argument on appeal. Moreover, to the extent that Mr. Staples raises a double-
jeopardy argument on appeal, we will not address that issue because it was not
                                                                    (continued...)

                                         -6-
process argument because we conclude that Mr. Staples did not exhaust the

administrative remedies available to him and has not demonstrated that

exhaustion would have been futile.

      “We review the district court’s dismissal of a § 2241 habeas petition de

novo.” Broomes v. Ashcroft, 358 F.3d 1251, 1255 (10th Cir. 2004). The

exhaustion of available administrative remedies is a prerequisite for § 2241

habeas relief, although we recognize that the statute does not expressly contain

such a requirement. See Williams v. O’Brien, 792 F.2d 986, 987 (10th Cir. 1986)

(per curiam). A limited exception to the exhaustion requirement applies if a

petitioner can demonstrate that exhaustion would be futile. See Fazzini v. Ne.

Ohio Corr. Ctr., 473 F.3d 229, 235–36 (6th Cir. 2006) (recognizing futility

exception in context of § 2241 petition); cf. Fairchild v. Workman, 579 F.3d

1134, 1155 (10th Cir. 2009) (discussing futility as to 28 U.S.C. § 2254 petitions).

      Construing Mr. Staples’s filings liberally, he appears to argue that

exhaustion of administrative remedies in this instance would have been futile

because the DHO did not tender a written copy of its decision in two of the three

disciplinary proceedings within ten days. More specifically, as to Incident Report

Numbers 1664517 (fighting) and 1661747 (possession of the screwdriver),



      2
       (...continued)
raised before the district court. See Turner v. Pub. Serv. Co. of Colo., 563 F.3d
1136, 1143 (10th Cir. 2009) (“Absent extraordinary circumstances, we will not
consider arguments raised for the first time on appeal.”).

                                         -7-
although the DHO signed the written report regarding those incidents on January

28, 2008, copies of the respective reports were not provided to Mr. Staples until

September 9, 2008. Mr. Staples contends, therefore, that he had no choice but to

file an appeal without copies of the DHO’s decisions and, when that appeal was

rejected based on the absence of those copies, he had to abandon his pursuit of an

administrative remedy and file a habeas petition. We disagree.

      As a preliminary matter, it appears that Mr. Staples only attempted to

appeal Incident Report Number 1661747 (possession of the screwdriver), but

either did not attempt to appeal the other two disciplinary actions against him or

did not follow the proper procedure in appealing those actions (in other words, by

appealing directly to the central-office level). We therefore must only address

Mr. Staples’s arguments as to the third disciplinary incident from which he did

file an appeal at the regional level.

      The regulations governing the DHO’s duty to give an inmate a copy of its

decision are as follows. 28 C.F.R. § 541.17(g) provides that “[t]he DHO shall

give the inmate a written copy of the decisions and disposition, ordinarily within

10 days of the DHO’s decision.” At the same time that an inmate receives written

notice of the DHO’s decision, the DHO is required to advise him of his right to an

administrative appeal to the appropriate regional office. 28 C.F.R. § 541.19.

Furthermore, “[t]he inmate should forward a copy of the DHO report or, if not

available at the time of filing, should state in his appeal the date of the DHO


                                         -8-
hearing and the nature of the charges against the inmate.” Id. We do not read

these regulations to require that the DHO must issue a copy within ten days (only

that it ordinarily must do so). The regional office in this case required a copy of

the DHO’s decision for an appeal because it rejected Mr. Staples’s appeal and

advised him that he should wait for that copy before bringing an appeal.

      Assuming without deciding that a copy of the report was required, we do

not conclude that the approximate eight-month delay in the DHO’s tender of the

copy to Mr. Staples prejudiced his ability to bring an administrative appeal or

rendered such an appeal futile. In so holding, we are persuaded by the reasoning

adopted by the Third Circuit, albeit in an unpublished and therefore non-binding

decision, that the DHO’s failure to give an inmate a written copy of its decision

within ten days should not entitle an inmate to habeas relief so long as the delay

had no prejudicial effect on an administrative appeal. See Cook v. Warden, Fort

Dix Corr. Inst., 241 F. App’x 828, 829 (3d Cir. 2007) (per curiam). Mr. Staples

does not allege any prejudice to him resulting from the delay. Mr. Staples was

free to re-file the appeal once he did receive a copy of the DHO’s decision.

Moreover, the delay, although unfortunate, did not cause any prejudice to Mr.

Staples in light of the length of time remaining before his projected release date

in 2019. Mr. Staples therefore has failed to demonstrate that exhaustion of the

BOP’s administrative remedy process would have been futile.




                                         -9-
III. Conclusion

      Because Mr. Staples failed to exhaust his administrative remedies

concerning the claims raised in his habeas petition and has not demonstrated

futility, the district court’s dismissal of the 28 U.S.C. § 2241 petition is

AFFIRMED.



                                 ENTERED FOR THE COURT


                                 Jerome A. Holmes
                                 Circuit Judge




                                         -10-
