                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-4-2005

Bastista v. US Dept of Justice
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-4305




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CPS-158                                                       NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT

                                    NO. 04-4305
                                 ________________

                             RAFAEL A.S. BASTISTA,

                                                     Appellant


                                          v.

 U.S. DEPARTMENT OF JUSTICE; FEDERAL BUREAU OF PRISONS; WARDEN,
         USP ALLENWOOD, TROY WILLIAMSON; THOMAS MARINO
                 ____________________________________

                  On Appeal From the United States District Court
                      For the Middle District of Pennsylvania
                         (M.D. Pa. Civ. No. 04-cv-00575 )
                    District Judge: Honorable Edwin M. Kosik
                  _______________________________________


          Submitted For Possible Dismissal Under 28 U.S.C. § 1915(e)(2)(B)
                                   March 3, 2005

                Before: ALITO, McKEE and AMBRO, Circuit Judges

                                (Filed: May 4, 2005 )


                             _______________________

                                     OPINION
                             _______________________

PER CURIAM

     Appellant Rafael Bastista, a federal prisoner proceeding pro se, appeals an order of
the United States District Court for the Middle District of Pennsylvania dismissing his

petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. We will dismiss this

appeal pursuant to 28 U.S.C. § 1915(e)(2)(B).1

       In his habeas petition, Bastista states that he was charged with orchestrating an

attack on another prisoner, and with fighting with that prisoner on a previous occasion. A

hearing officer found Bastista guilty of both charges, and sanctioned him to disciplinary

segregation, and the loss of good-time credits and privileges. Bastista, who speaks

Spanish, claims that he was denied due process because the charges were brought against

him without adequate notice in a language that he understood. He further contends that

he did not have an interpreter at one of his hearings, that the finding that he was guilty of

fighting was not supported by valid evidence, and that he was denied the opportunity to

present evidence on his behalf.

       The Government responded that the District Court should dismiss the petition

because Bastista did not exhaust his administrative remedies. The Magistrate Judge

agreed that Bastista was required to do so, but noted that the Government’s declaration

attesting to Bastista’s failure to exhaust was unsigned and could not be considered, and

that it was unclear whether Bastista failed to exhaust. The Magistrate Judge directed the

Government to file a supplemental response and provide copies of Bastista’s grievances




   1
    In District Court, Bastista filed documents using the name “Batista.” He has spelled
his name “Bastista” in documents filed in this Court, and the docket reflects this spelling.

                                              2
and appeals and responses thereto. The Magistrate Judge also directed Bastista to address

the issue of cause and prejudice in his reply in the event the District Court concluded that

he procedurally defaulted his claims.

       The Government filed a supplemental response, but only provided the same

unsigned declaration. The Magistrate Judge noted that Bastista did not disagree with the

declaration, and concluded that his attempts to exhaust were insufficient because he did

not properly pursue his appeals to final review. The Magistrate Judge further found that

Bastista’s inability to speak English did not constitute cause to excuse his procedural

default, and recommended the dismissal of the habeas petition. The District Court

adopted the recommendation and dismissed the petition. This appeal followed.

       A federal prisoner must exhaust his administrative remedies before petitioning for

a writ of habeas corpus pursuant to § 2241. Moscato v. Federal Bureau of Prisons, 98

F.3d 757, 760 (3d Cir. 1996). We will not consider the unsigned declaration that the

Government submitted to show that Bastista failed to exhaust his administrative remedies.

However, the two documents that Bastista provided to the District Court establish that he

did not exhaust. Regarding the charge of ordering the assault of another inmate, Bastista

provided the Regional Director’s decision denying his appeal of the finding of

misconduct. In the decision, the Regional Director stated that Bastista could appeal to the

General Counsel of the Federal Bureau of Prisons. Bastista also provided the

Administrator of National Inmate Appeals’ response to his request for an expungement of



                                             3
the incident report related to this charge. In denying the request, the Administrator stated

that Bastista did not appeal the Regional Director’s denial of his appeal of the finding of

misconduct.

       Regarding the fighting charge, the Regional Director stated in his decision denying

Bastista’s appeal of the finding that he ordered an attack, that he must separately appeal

the finding of misconduct for fighting. Bastista does not maintain that he ever did so.

Bastista’s submissions establish that he procedurally defaulted his due process claims

related to the findings of misconduct. Thus, review of his habeas petition is barred absent

a showing of cause and prejudice to excuse the default. Moscato, 98 F.3d at 762.

       We agree with the District Court that Bastista has not shown cause, or that “‘some

objective factor external to the defense impeded [his] efforts to comply with the [prison’s]

procedural rule.’” Werts v. Vaughn, 228 F.3d 178, 193 (3d Cir. 2000) (citation omitted).

In his objections to the Magistrate Judge’s report, Bastista argued that he does not speak

English, and he was not notified that his staff representative could assist him in filing an

administrative appeal. The District Court noted that the regulations do not require such

assistance. Moreover, based upon Bastista’s demonstrated ability to represent himself,

we cannot conclude that his efforts to appeal the findings of misconduct were impeded by

a lack of staff assistance. See Bonilla v. Hurley, 370 F.3d 494, 498 (6th Cir.), cert.

denied, 125 S. Ct. 506 (2004) (finding prisoner’s unfamiliarly with English language

insufficient to establish cause to excuse a procedural default, and noting prisoner’s ability



                                              4
    to file documents in state court).

              Accordingly, we will dismiss this appeal as frivolous pursuant to 28 U.S.C.

    § 1915(e)(2)(B).2




       2
1          Bastista’s Motion Requesting to File Appellate Brief is denied.

                                                   5
