           Case: 15-12295   Date Filed: 08/08/2016   Page: 1 of 6




                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 15-12295
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 5:13-cv-00181-WTH-PRL



LONNIE BERNARD DAVIS,

                                                          Petitioner-Appellant,

                                 versus

WARDEN, FCC COLEMAN - USP I,

                                                        Respondent-Appellee.

                       ________________________

                Appeal from the United States District Court
                    for the Middle District of Florida
                      ________________________

                             (August 8, 2016)

Before TJOFLAT, JORDAN and JULIE CARNES, Circuit Judges.

PER CURIAM:
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      Lonnie Davis, a federal prisoner proceeding pro se, appeals the district

court’s order dismissing without prejudice his 28 U.S.C. § 2241 habeas corpus

petition. Davis argues that the district court erred by dismissing his § 2241 petition

based on its determination that he failed to exhaust his administrative remedies.

      We review de novo the district court’s denial of habeas relief under § 2241.

Bowers v. Keller, 651 F.3d 1277, 1291 (11th Cir. 2011) (per curiam). A district

court’s factual findings are reviewed for clear error. Id. We liberally construe pro

se pleadings. Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998)

(per curiam).

      Additionally, we may construe a district court’s dismissal as a denial if the

distinction “makes no significant difference.” Cani v. United States, 331 F.3d

1210, 1216 (11th Cir. 2003) (construing a district court’s dismissal for lack of

subject-matter jurisdiction as a denial on the merits, and affirming); see also Boda

v. United States, 698 F.2d 1174, 1177 (11th Cir. 1983) (affirming the dismissal of

the civil suit, but modifying it so as to rest on an absence of jurisdiction).

      A § 2241 petition may properly proceed where the petitioner challenges the

execution of his sentence. See Antonelli v. Warden, U.S.P. Atlanta, 542 F.3d 1348,

1352 (11th Cir. 2008) (explaining that challenges to the execution of a sentence are

cognizable under § 2241). However, the petitioner must exhaust available


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administrative remedies before he can obtain relief. Santiago-Lugo v. Warden, 785

F.3d 467, 474–75 (11th Cir. 2015). A prisoner seeking relief under § 2241 was

previously required to exhaust his administrative remedies as a jurisdictional

prerequisite to suit. Skinner v. Wiley, 355 F.3d 1293, 1295 (11th Cir. 2004) (per

curiam), abrogated by Santiago-Lugo, 785 F.3d at 471, 474–75, 474 n.5; see also

Gonzalez v. United States, 959 F.2d 211, 212 (11th Cir. 1992) (per curiam),

abrogated by Santiago-Lugo, 785 F.3d at 471, 474–75. In Santiago-Lugo, we

held that the administrative-exhaustion requirement was judge-made, rather than

jurisdictional. Santiago-Lugo, 785 F.3d at 474–75. Nevertheless, we emphasized

that “[t]he [administrative] exhaustion requirement is still a requirement; it’s just

not a jurisdictional one.” Id. at 475. In order to properly exhaust administrative

remedies, a petitioner must comply with an agency’s deadlines and procedural

rules. See Woodford v. Ngo, 548 U.S. 81, 90–91, 126 S. Ct. 2378, 2386, 165

L. Ed. 2d 368 (2006) (addressing the exhaustion requirement in the Prison

Litigation Reform Act).

      Pursuant to the Bureau of Prisons (BOP’s) Administrative Remedy Program,

an inmate can “seek formal review of an issue relating to any aspect of” his

confinement. 28 C.F.R. § 542.10(a). An appeal of a hearing officer’s decision

“shall be submitted initially to the Regional Director for the region where the

inmate is currently located.” Id. § 542.14(d)(2). An inmate must submit his appeal


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to the appropriate Regional Director “within 20 calendar days” of the date that the

formal administrative decision was signed. Id. § 542.15(a). If not satisfied with

the Regional Director’s resolution, the inmate may then submit an appeal to the

General Counsel within thirty calendar days of the date on which the Regional

Director signed the response. Id. Time limits may be extended, however, when

the inmate demonstrates a valid reason for the delay. Id. Valid reasons include an

extended period during which an inmate was in transit or was physically incapable

of preparing the appeal. Id. §§ 542.15(a), 542.14(b). Appeal to the General

Counsel is the final administrative appeal. Id. § 542.15(a).

      Here, the district court did not err by dismissing Davis’s § 2241 petition

without prejudice based on its determination that he failed to exhaust his

administrative remedies. Grounds One and Two of Davis’s petition challenged the

disciplinary action taken against him in 2011 as a result of the disciplinary hearing

officer’s (“DHO”) determination that he possessed a prohibited weapon. Although

the signed DHO report was delivered to Davis on February 17, 2011, Davis did not

submit his appeal to the Regional Director until March 15, 2011. Accordingly, the

Regional Office rejected his appeal as untimely, as it was not filed within twenty

days of February 17. See 28 C.F.R. §§ 542.15(a), 542.14(d)(2). Nevertheless,

because the time for filing an appeal may be extended for a “valid reason,” the

Regional Office advised Davis to resubmit his appeal within ten days, and to


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provide a staff memo on BOP letterhead verifying that the untimeliness was not his

fault. See 28 C.F.R. § 542.14(b). Although the Regional Office rejected Davis’s

initial appeal on April 4, 2011, Davis did not resubmit his appeal—sans

explanatory staff memo—until more than a month later, on May 18. Accordingly,

the Regional Office once again rejected Davis’s appeal as untimely, and advised

him to appeal to the Central Office. Although Davis received this rejection notice

in June 2011, he did not file an appeal with the Central Office until August 2011,

more than thirty days after the regional office rejected his appeal. Accordingly, the

record reveals that the BOP correctly rejected Davis’s Regional Office and Central

Office appeals as untimely under 28 C.F.R. § 542.15(a), and the district court did

not err by denying Grounds One and Two of Davis’s habeas petition based on its

conclusion that he failed to exhaust his administrative remedies.

      In Ground Three of his § 2241 petition, Davis apparently contends that he

could have provided the Regional Office with the requested staff memo within ten

days of April 4, 2011, if the prison’s unit manager had not improperly denied his

request. Essentially, Davis contends that he was entitled to a staff memo

explaining that his initial regional appeal was untimely because he was indigent

and unable to obtain access to stamps. However, regardless of whether Davis was

indigent or not, the record reveals that he obtained stamps on February 18, 2011,

the day after he received notice of the DHO report and within the timeframe for


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filing his regional appeal. Accordingly, the actions of the prison’s unit manager

did not affect Davis’s ability to timely file his regional appeal, and Ground Three

of Davis’s § 2241 petition does not articulate any valid reason for the delay in

filing his initial appeal in the Regional Office, or his initial appeal to the Central

Office. Moreover, to the extent that Ground Three asserted a First Amendment

retaliation claim, such a claim was not cognizable in a § 2241 proceeding because

it did not challenge the execution of Davis’s sentence. See Antonelli, 542 F.3d at

1352. 1

       Accordingly, the district court properly determined that Davis failed to

exhaust his administrative remedies. However, because the failure to exhaust

administrative remedies is no longer a jurisdictional prerequisite to suit, we

construe the district court’s dismissal as a denial, and affirm with that

understanding because the distinction makes no significant difference in this case.

See Santiago-Lugo, 785 F.3d at 474–75; see also Cani, 331 F.3d at 1216.

       AFFIRMED.




       1
         Davis also raised a fourth claim—alleging that his Eighth Amendment rights were
violated by the arbitrary enforcement of prison discipline—which the district court ultimately
rejected. Because Davis does not refer to that claim on appeal, any issue in that respect is
abandoned. See Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1330 (11th Cir. 2004)
(holding that, if an appellant does not present a legal claim or argument in his initial brief, that
argument is deemed abandoned).

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