     Case: 15-10607      Document: 00513771384         Page: 1    Date Filed: 11/23/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                      United States Court of Appeals
                                                                               Fifth Circuit

                                    No. 15-10607                             FILED
                                  Summary Calendar                   November 23, 2016
                                                                        Lyle W. Cayce
                                                                             Clerk
LISA A. BIRON,

                                                 Petitioner-Appellant

v.

JODY UPTON, Warden, Federal Medical Center Carswell,

                                                 Respondent-Appellee


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 4:14-CV-772
                              USDC No. 4:14-CV-823


Before REAVLEY, OWEN, and ELROD, Circuit Judges.
PER CURIAM: *
       Lisa Biron, federal prisoner # 12775-049, filed a 28 U.S.C. § 2241 petition
in the District of Connecticut to challenge three disciplinary convictions. Biron
incurred a fourth disciplinary conviction after her transfer to a Bureau of
Prisons (BOP) facility at FMC Carswell, where she is presently incarcerated,
and she filed another § 2241 petition to challenge that disciplinary conviction,



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                  No. 15-10607

which like the others, resulted in punishments that included the loss of good
conduct time. The Connecticut federal district court transferred Biron’s first
§ 2241 petition to the Northern District of Texas.
      The Government answered the petitions, arguing that Biron’s challenges
to her disciplinary convictions lacked merit and that Biron’s challenges to three
of her disciplinary convictions should be dismissed because she had failed to
exhaust her administrative remedies. Biron filed a reply. After consolidating
the petitions, the district court addressed the merits of Biron’s challenge to the
disciplinary conviction associated with Incident Report 2511967 and denied
habeas relief. The district court dismissed Biron’s claims as to the disciplinary
convictions associated with Incident Reports 2543232, 2545925, and 2602170
for failure to exhaust administrative remedies. Biron timely appealed.
      As to the disciplinary conviction associated with Incident Report
2511967, Biron argues that she was denied notice and the opportunity to
defend herself when the Regional Director changed her disciplinary conviction
from a Code 196 violation to a Code 296 violation. She also contends that she
violated no prison rule and that there was no evidence to support the
disciplinary conviction.
      The record shows that the same facts alleged to support the original Code
196 charge provided the basis for Biron’s conviction of a Code 296 violation.
Biron’s rights to notice and to the opportunity to defend herself therefore were
not abridged. See Downs v. Wages, 62 F.3d 395, 1995 WL 450196, *1-2 (5th
Cir. July 3, 1995) (unpublished).      Further, a Code 296 violation can be
committed in various ways, including “writing letters in code.” 28 C.F.R.
§ 541.3(a). The record establishes that Biron wrote a letter, addressed to her
father, which contained a message intended for her minor daughter, whom
Biron referred to as “my Cousin Erin.” Based on the foregoing, there was some



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                                 No. 15-10607

evidence to support the disciplinary conviction. See Broussard v. Johnson, 253
F.3d 874, 876-77 (5th Cir. 2001).
      Biron contends that the district court abused its discretion in dismissing
her challenges to the disciplinary convictions associated with Incident Reports
2543232, 2545925, and 2602170 for failure to exhaust administrative
remedies. She argues that (1) because the issue of a “no contact” order was
common to all of her administrative appeals, and that issue was resolved in
her initial administrative appeal, she should be deemed to have exhausted the
issue for purposes of subsequent administrative appeals, (2) the BOP made
administrative remedies unavailable in various ways, and (3) her failure to
exhaust should be excused because the pursuit of administrative remedies was
futile. After a thorough review of the record in light of Biron’s arguments, we
conclude that Biron has failed to establish that the district court abused its
discretion in dismissing her claims for failure to exhaust administrative
remedies. See Fuller v. Rich, 11 F.3d 61, 62 (5th Cir. 1994). Further, as to
Biron’s challenge to the disciplinary conviction associated with Incident Report
2602170, we affirm for the additional reason that Biron was “required to
exhaust [her] administrative remedies before seeking habeas relief in federal
court under 28 U.S.C. § 2241.” Id.
      Finally, Biron asserts that it was plain error for the Connecticut federal
district court to allow the BOP to transfer her to a facility in Texas after she
had filed a § 2241 petition in the District of Connecticut, and she requests that
we order the BOP to transfer her back to its Northeast Region. We have held
that “[t]he hallmark of a statute that has not created a liberty interest is
discretion,” and “[w]here the statute grants the prison administration
discretion, the government has conferred no right on the inmate.” Richardson
v. Joslin, 501 F.3d 415, 419 (5th Cir. 2007). In view of the BOP’s broad



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discretion in designating the place of a prisoner’s incarceration, see 18 U.S.C.
§ 3621(b), there was no error, plain or otherwise. See Puckett v. United States,
556 U.S. 129, 135 (2009); Richardson, 501 F.3d at 419.
      AFFIRMED.




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