                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                   May 21, 2007

                                                         Charles R. Fulbruge III
                                                                 Clerk
                            No. 06-41035
                          Summary Calendar



     ALEJANDRO CASTANO,

                                          Petitioner-Appellant,

          versus


     KEN EVERHART, Acting Warden,

                                          Respondent-Appellee.




           Appeal from the United States District Court
                 for the Eastern District of Texas
                        USDC No. 1:06-CV-194



Before GARWOOD, DEMOSS and BENAVIDES, Circuit Judges.

PER CURIAM:*

     Alejandro Castano, federal prisoner # 08673-035, appeals the

district court’s dismissal of his 28 U.S.C. § 2241 petition for

failure to exhaust his administrative remedies.      Castano argues

that he should not have to exhaust his administrative remedies

because he is entitled to an immediate release from prison and,

thus, administratively exhausting his claim will delay his release


     *
      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opinion should not be published and is not precedent except under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.
from prison by months.

     A federal prisoner seeking credit on his sentence may “file

his petition pursuant to § 2241, but he must first exhaust his

administrative remedies through the Bureau of Prisons.”                   United

States v. Gabor, 905 F.2d 76, 78 n.2 (5th Cir. 1990).               Dismissal

without prejudice of a federal prisoner’s section 2241 suit for

failure to exhaust administrative remedies is reviewed for abuse of

discretion.   Fuller v. Rich, 11 F.3d 61 at 62 (5th Cir. 1994).

     “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.”   Id.   Exceptions to the exhaustion requirement apply

only in “extraordinary circumstances,” and Castano bears the burden

of demonstrating the futility of administrative review.                 See id.

     Castano has failed to carry his burden.             He has not shown that

available administrative remedies are either unavailable or wholly

inappropriate to the relief sought.              Moreover, he has not shown

that exhausting his claim administratively is futile in the sense

that BOP routinely denies claims such as his.

     Castano’s “futility argument” is essentially an assertion that

his sentence-calculation claim is meritorious and that he should

therefore   not   have   to   endure       any   delay    caused   by    seeking

administrative review of the claim.              The documents provided by


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Castano, however, while not definitively showing that his claim is

without merit, suggest that it likely is.

      Even if Castano’s claim is meritorious, however, and if he has

to   suffer   a   delay   to    his    immediate    release     while   his    claim

progresses through the administrative review process, that delay is

one of his own making.         Castano states in his appellate brief that

he learned of the alleged erroneous sentence calculation when he

first arrived      at   Bureau    of     Prisons,   which,     according      to   the

documents presented by Castano, was in 1995.                    In addition, the

“Sentence Monitoring Computation Data” sheet submitted by Castano

is dated August 2004.            Castano did not file his section 2241

petition, however, until 2006.            Given Castano’s lack of diligence

in pursuing this claim, he has not shown that his case presents

“extraordinary      circumstances”        warranting     an    exception   to      the

exhaustion requirement.         See Fuller, 11 F.3d at 62.         Cf. Deters v.

Collins, 985 F.2d 789, 796-97 (5th Cir. 1993) (failure to exhaust

state remedies); Cox v. Johnson, 878 F.2d 414, 419 (D.C. Cir. 1989)

(finding exhaustion [under 20 U.S.C. § 1415] not futile where,

inter alia, both parties contributed to delay).

      Castano     has   not    carried    his   burden    of    showing    that     an

exception to the exhaustion requirement should be applied.                         The

judgment is modified so that the dismissal is “without prejudice”

and as so modified is affirmed.

                              AFFIRMED AS MODIFIED


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