                                                                                                                           Opinions of the United
1996 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-22-1996

Moscato v. Fed Bureau Prisons
Precedential or Non-Precedential:

Docket 95-7065




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Recommended Citation
"Moscato v. Fed Bureau Prisons" (1996). 1996 Decisions. Paper 60.
http://digitalcommons.law.villanova.edu/thirdcircuit_1996/60


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                   UNITED STATES COURT OF APPEALS
                       FOR THE THIRD CIRCUIT



                              95-7065


                   PHILLIP B. MOSCATO   #08126-050

                                v.

                     FEDERAL BUREAU OF PRISONS;
                         L.S.C.I. ALLENWOOD

                        Phillip B. Moscato,

                                     Appellant.



          On Appeal from the United States District Court
              For the Middle District of Pennsylvania
                     D.C. Civ. No. 94-cv-00551



                        Argued July 26, 1996

Before:   BECKER, STAPLETON, and MICHEL, Circuit Judges

                 (Opinion Filed October 22, l996)




                                Howard J. Bashman (ARGUED)
                                Montgomery, McCracken,
                                Walker & Rhoads
                                Three Parkway - 20th Floor
                                Philadelphia, PA 19102

                                Attorney For Appellant




                                David M. Barasch
                                United States Attorney
                                Larry B. Selkowitz
                                Assistant U.S. Attorney
                                228 Walnut Street
                                P.O. Box 11754
                                Harrisburg, PA 17108
                                Henry J. Sadowski (ARGUED)
                                Deputy Regional Counsel
                                Federal Bureau of Prisons
                                Northeast Regional Office
                                U.S. Customs House - 7th Floor
                                2nd and Chestnut Streets
                                Philadelphia, PA 19106

                                Attorneys For Appellees



                         OPINION OF THE COURT


BECKER, Circuit Judge.

         Phillip Moscato, a federal prison inmate, filed
this petition for habeas corpus relief in federal district court
challenging the constitutionality of an institutional
disciplinary hearing that resulted in certain adverse findings
and the loss of his good-time credits. Before reaching the
district court, Moscato pursued his administrative remedies, but
was barred from proceeding to the final level of administrative
review because of his failure to file a timely appeal. This
appeal requires us to determine what effect such a procedural
default has upon a federal prisoner's request for habeas corpus
relief under 28 U.S.C. § 2241. We hold that a prisoner's
procedural default of his administrative remedies bars judicial
review of his habeas petition unless he can show cause for the
default and prejudice attributable thereto. Because Moscato
committed a procedural default of his administrative remedies by
filing an untimely appeal and because he cannot show cause for
the default, we are barred from review of the merits of his §
2241 petition. Accordingly, we affirm the district court's
dismissal of Moscato's petition, although we do so on different
grounds.

                                I.
         On April 8, 1993, Moscato's unit at the Allenwood
Federal Prison Camp was subjected to a shakedown. According to
Moscato, when he returned to his living area, he discovered that
his possessions had been trampled and discarded on the floor.
Moscato grew angry and, although the nature of his behavior
remains in dispute, all parties agree that officers soon removed
Moscato to the Lieutenant's office and charged him with Engaging
in or Encouraging Others in a Group Demonstration. See 28 C.F.R.
§ 541.13 - Table 3 (Code 212) (1993). That same night, Moscato
was removed from the Federal Prison Camp and transported a few
miles away to administrative segregation at Low Security
Correctional Institution ("LSCI") Allenwood.
         On May 4, 1993, Moscato received a disciplinary hearing
at LSCI Allenwood. Prior to the hearing, he requested that
Correctional Officer David Ortiz and three inmates be called as
witnesses on his behalf. The disciplinary hearing officer
refused to call any of Moscato's witnesses, stating that Ortiz
was an adverse witness whose testimony was already before the
hearing officer as part of the investigative report, and that the
inmate witnesses, imprisoned at a different site, were
unavailable for testimony. In lieu of the inmates' oral
testimony, the prison solicited from them brief statements that
supported Moscato's recollection of the incident. At the
hearing, Moscato read a statement on his own behalf and denied
engaging in or encouraging a group demonstration. The hearing
officer also reviewed statements from the five correctional
officers who were present at the time of the incident. No other
witnesses appeared for either side.
         After reviewing all of the evidence, the hearing
officer found Moscato guilty of Attempting to Engage in or
Encouraging Others in a Group Demonstration, see 28 C.F.R. §
541.13(b) - Table 3 (Code 212A), rather than the substantive act
itself. According to the disciplinary hearing report, the
sanctions imposed included: (a) disciplinary confinement; (b)
forfeiture of 45 days statutory good time; (c) withholding of 10
days statutory good time; and (d) termination of eligibility for
camp good time effective April 8, 1993. The hearing officer also
recommended that Moscato receive a disciplinary transfer. Prior
to this incident, Moscato had 269 days of statutory good-time
credit.
         Moscato was informed of his right to appeal. It is not
clear from the record whether he appealed first to the Warden.
It is clear, however, that he filed a timely appeal to the Bureau
of Prisons, Northeast Regional Director, seeking restoration of
his good time credits and expungement of his incident report, and
that, on June 29, 1993, the appeal was denied. Moscato attempted
to appeal this decision to the Bureau's central office, the
Office of General Counsel, but his appeal was not received until
August 14, 1993, 16 days after the 30 day deadline. The General
Counsel denied the appeal as untimely. Moscato submitted a
second appeal to the General Counsel on October 12, 1993; it too
was denied as untimely.
         On April 14, 1994, Moscato filed an in forma pauperispetition
requesting habeas corpus relief pursuant to 28 U.S.C. §
2241 on the grounds that the Bureau of Prisons had denied him
due process at the disciplinary hearing and that the evidence was
insufficient to support the hearing officer's determination of
misconduct. Moscato initially requested a rehearing of his
disciplinary charge and restoration of his good-time credits.
The U.S. Attorney opposed the petition on the merits but also
argued that Moscato's untimely appeal to the General Counsel
barred judicial review of his petition for relief. In reply,
Moscato asked that the decision of the hearing officer be
reversed and that the incident report be expunged from his prison
record.
         By consent of the parties, the case was submitted to a
magistrate judge pursuant to 28 U.S.C. § 636(c). The magistrate
judge dismissed the petition on the merits without discussing
whether the claims were barred due to a procedural default. In
rendering this decision, the magistrate judge noted that Wolff v.
McDonnell, 418 U.S. 539 (1974), permitted the use of written
statements in lieu of live testimony where the witnesses are
"unavailable." The magistrate judge reasoned that because
Moscato's witnesses were not imprisoned with Moscato at LSCI
Allenwood, they were unavailable, and thus use of their written
statements was not in error. The magistrate judge also held that
due process did not require the hearing officer to call Officer
Ortiz because Ortiz was an adverse witness who had submitted a
memorandum describing the incident. See 28 C.F.R. § 541.17(c).
Finally, the magistrate judge ruled that the evidence was
sufficient to sustain a finding that Moscato had attempted to
encourage a group demonstration.   This timely appeal followed.


                               II.
         Federal prisoners are ordinarily required to exhaust
their administrative remedies before petitioning for a writ of
habeas corpus pursuant to § 2241.   Bradshaw v. Carlson, 682 F.2d
1050, 1052 (3d Cir. 1981) (per curiam); United States v. Gabor,
905 F.2d 76, 78 n.2 (5th Cir. 1990); Sanchez v. Miller, 792 F.2d
694, 699 (7th Cir. 1986), cert. denied, 479 U.S. 1056 (1987).
Here, however, we are presented with a situation where, because
Moscato failed to timely file an appeal to the General Counsel,
Moscato cannot complete the administrative process. The Bureau
contends that, because Moscato's appeal was denied as untimely,
he committed a procedural default that barred review of his §
2241 petition. We believe that Moscato's failure to satisfy the
procedural rules of the Bureau's administrative process
constitutes a procedural default. Francis v. Rison, 894 F.2d
353, 355 & n.2 (9th Cir. 1990); Sanchez, 792 F.2d at 697 (citingEngle v.
Isaac, 456 U.S. 107, 124-25 & n.28 (1982)). We must
therefore determine what the effect of such a default should be.
         The Seventh Circuit, which is the one Court of Appeals
to have considered this precise issue, has held that if a
prisoner has failed to exhaust his administrative remedies due to
a procedural default and the default renders unavailable the
administrative process, review of his habeas claim is barred
unless he can demonstrate cause and prejudice. Sanchez, 792 F.2d
at 699. Because we believe that the preexisting law of
procedural default and exhaustion of remedies renders the Seventh
Circuit's decision inexorable, we endorse and adopt this holding.
         The Supreme Court first articulated the cause and
prejudice rule of procedural default in Davis v. United States,
411 U.S. 233 (1973). In Davis, a federal prisoner petitioning
under § 2255 sought to challenge for the first time the
composition of the grand jury that indicted him. The petitioner
had failed to comply with Fed. R. Crim. P. 12, which required
that a failure to object to the composition of a grand jury at
trial constituted a waiver of the objection absent "for cause
shown." The Supreme Court determined that review of the habeas
petition was barred absent a showing of cause for the failure to
comply with the procedural requirement and of actual prejudice
resulting from the alleged constitutional violation. 411 U.S. at
243-45.
         The Court later extended the rule of Davis to cases
involving state and federal procedural rules that did not
explicitly allow for an exception upon a showing for cause. SeeFrancis v.
Henderson, 425 U.S. 536, 542 (1976) (cause and effect
showing required to waive default of state procedural requirement
that a challenge to grand jury composition be raised before
trial); Wainwright v. Sykes, 433 U.S. 85, 89 (1977) (federal
habeas barred absent showing of cause and prejudice when prisoner
waived, under state law, his objection to admission of his
confession); United States v. Frady, 456 U.S. 152, 167-68 (1982)
(applying cause and prejudice rule in a federal habeas action
involving Fed. R. Crim. P. 30, which contained no explicit
exception to requirement for timely challenge to jury
instructions); Neely v. Zimmerman, 858 F.2d 144, 145 (3rd Cir.
1988) (failure to raise Massiah claim in post-verdict motion as
required by state common law bars review of petitioner's habeas
claim).
         As the foregoing discussion indicates, a procedural
default generally bars review of a federal habeas corpus petition
absent a showing of cause and prejudice, "whether the default
occurs in federal or state court, at trial or on appeal, and
whether or not the procedural rule expressly incorporates a
cause-and-prejudice standard." Sanchez, 792 F.2d 698. The courts
enforce the cause and prejudice rule in part to conserve judicial
resources by requiring state or federal prisoners who seek habeas
relief to present their claims to the venue initially available.
Id.; Engle, 456 U.S. at 126-29 (discussion of costs associated
with habeas review). For federal prisoners challenging
disciplinary proceedings, the initial venue is the administrative
process. By applying the cause and prejudice rule to habeas
review of administrative proceedings, we insure that prisoners do
not circumvent the appropriate agencies and needlessly swamp the
courts with petitions for relief.
         We also believe that a procedural default in the
administrative process bars judicial review because "the reasons
for requiring that prisoners challenging disciplinary actions
exhaust their administrative remedies are analogous to the
reasons for requiring that they exhaust their judicial remedies
before challenging their convictions; thus, the effect of a
failure to exhaust in either context should be similar."
Sanchez, 792 F.2d at 698. We require exhaustion for three
reasons: (1) allowing the appropriate agency to develop a factual
record and apply its expertise facilitates judicial review; (2)
permitting agencies to grant the relief requested conserves
judicial resources; and (3) providing agencies the opportunity to
correct their own errors fosters administrative autonomy.
Bradshaw, 682 F.2d at 1052; see also Schlesinger v. Councilman,
420 U.S. 738, 756-57 (1975) (exhaustion avoids duplicative
proceedings and insures that judicial review will be informed and
narrowed); McKart v. United States, 395 U.S. 185, 195 (1969)
(circumvention of administrative process diminishes effectiveness
of an agency by encouraging prisoners to ignore its procedures).
Requiring petitioners to satisfy the procedural requirements of
the administrative remedy process promotes each of these goals.
         In sum, we hold that a federal prisoner who challenges
a disciplinary proceeding within a federal institution, fails to
exhaust his administrative remedies because of a procedural
default, and subsequently finds closed all additional avenues of
administrative remedy, cannot secure judicial review of his
habeas claim absent a showing of cause and prejudice.

                               III.
         The district court did not rule on whether Moscato
could excuse his procedural default. Although we could remand
for further proceedings, when we reviewed the supplemental
briefing on the issue of cause, we were struck by the lack of
suggestion that anything other than Moscato's dilatoriness caused
the appeal to be filed late. Where, in the face of an explicit
opportunity to do so, a petitioner fails to allege the existence
of an external impediment, a remand for a hearing is unnecessary
because there is no factual dispute to resolve. Cf. Wainwright,
433 U.S. at 91; Esslinger v. Davis, 44 F.3d 1515, 1528 n.45 (11th
Cir. 1995); Sanchez, 792 F.2d at 699. Because Moscato cannot
show cause, we need not address the question of actual prejudice.
Caswell v. Ryan, 953 F.2d 853, 863 (3rd Cir.), cert. denied, 504
U.S. 944 (1992).
         Accordingly, because Moscato committed a procedural
default of his administrative remedies, and because he cannot
show cause for the default, his habeas petition filed pursuant to
28 U.S.C. § 2241 is barred from review on the merits. The order
of the magistrate judge dismissing the petition will therefore be
affirmed.
