                    Case: 11-15955         Date Filed: 08/20/2012   Page: 1 of 5

                                                                        [DO NOT PUBLISH]


                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________

                                            No. 11-15955
                                        Non-Argument Calendar
                                      ________________________

                                 D.C. Docket No. 1:11-cv-20828-JAL


STEVEN A. MCGEE,

llllllllllllllllllllllllllllllllllllllll                                 Petitioner-Appellant,

                                                 versus


WARDEN, FDC Miami,

llllllllllllllllllllllllllllllllllllllll                               Respondent-Appellee.

                                     ________________________

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

                                           (August 20, 2012)

Before TJOFLAT, CARNES, and KRAVITCH, Circuit Judges.

PER CURIAM:
               Case: 11-15955     Date Filed: 08/20/2012    Page: 2 of 5

      Steven A. McGee, a federal prisoner proceeding pro se, filed a 28 U.S.C.

§ 2241 petition for a writ of habeas corpus. Based on a report and

recommendation by a magistrate judge, the district court dismissed McGee’s

petition on the basis that he had failed to exhaust his administrative remedies, and

even if he had, his claims failed on the merits. On appeal, McGee contends that:

(1) the district court violated his due process rights by not considering his timely

filed objections to that magistrate judge’s report; and (2) his § 2241 petition

should not have been dismissed for failure to exhaust administrative remedies

because he qualified for a “futility exception” to that rule.

                                          I.

      On September 8, 2011, the magistrate judge issued a report recommending

dismissal of McGee’s § 2241 petition and giving the parties 14 days after

receiving the report to file any objections. On September 26, 14 days later, he

timely delivered his objections to prison authorities for filing. See Day v. Hall,

528 F.3d 1315, 1318 (11th Cir. 2008) (“Under the mailbox rule . . . a prisoner’s

pleading is considered filed on the date the prisoner delivers such to prison

authorities for filing.”). On September 27, the district court adopted the

magistrate’s report, finding that no objections had been filed. On September 28,

McGee’s objections to the magistrate’s report were noted on the court’s docket.

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      McGee then filed a motion to alter or amend the district court’s judgment

under Federal Rule of Civil Procedure 59(e). However, the district court,

“[h]aving considered the Motions and the record” and “[u]pon review[ing]

McGee’s Motion and his Objections,” denied McGee’s Rule 59(e) motion.

                                         II.

      “We review de novo the district court’s denial of habeas relief under 28

U.S.C. § 2241.” Bowers v. Keller, 651 F.3d 1277, 1291 (11th Cir. 2011). And we

review only for clear error the district court’s factual findings. Id. Although

McGee contends the district court violated his due process rights by failing to

consider his timely filed objections to the magistrate judge’s report, the district

court’s order denying McGee’s Rule 59(e) motion subsequently considered and

addressed the merits of those objections. Therefore, the district court did not deny

McGee any rights to due process. See United States v. Williamson, 339 F.3d

1295, 1305 n.18 (11th Cir. 2003).

                                          III.

      McGee also contends the district court erred by dismissing his § 2241

petition because he failed to exhaust his administrative remedies. Relying on

Winck v. England, 327 F.3d 1296 (11th Cir. 2003), he argues that he was not

required to do so “where it can be demonstrated that it is futile to exhaust

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administrative remedies before proceeding to Federal court.” Winck held,

however, that the “futility exception” applied to remedies sought under 28 U.S.C.

§ 2254, not those sought under § 2241 claims as McGee’s. Compare id. at 1299,

1304 (“We have also expressly concluded that exhaustion is not a jurisdictional

bar to habeas relief when seeking release from state custody pursuant to 28 U.S.C.

§ 2254. . . . Generally, exhaustion is not required [under § 2254] where . . . an

administrative appeal would be futile.” (quotation marks and emphasis omitted)),

with id. at 1300 n.1. (“By contrast, exhaustion of administrative remedies is

jurisdictional, when a petition for writ of habeas corpus is brought pursuant to 28

U.S.C. § 2241 for release from a federal prison.” (alteration and quotation marks

omitted)); see also Skinner v. Wiley, 355 F.3d 1293, 1295 (11th Cir. 2004)

(holding that “prisoners seeking habeas relief, including relief pursuant to § 2241,

are subject to administrative exhaustion requirements”); Cf. Booth v. Churner, 532

U.S. 731, 741 n.6, 121 S.Ct. 1819, 1825 n.6 (2001) (“That Congress has mandated

exhaustion in either case defeats the argument of Booth and supporting amici that

this reading of [42 U.S.C.] § 1997e is at odds with traditional doctrines of

administrative exhaustion, under which a litigant . . . need not exhaust where

doing so would otherwise be futile. Without getting into the force of this claim

generally, we stress the point . . . that we will not read futility or other exceptions

into statutory exhaustion requirements where Congress has provided otherwise.”

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(citations and quotation marks omitted)). McGee has not cited any case

establishing that there is a futility exception to the requirement to exhaust

administrative remedies under § 2241 petition. Because McGee did not exhaust

his administrative remedies, the district court did not have jurisdiction to review

his § 2241 petition.1

      AFFIRMED.




      1
          For the foregoing reasons, we also deny McGee’s motion for oral argument.

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