DLD-181                                                        NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 10-1074
                                       ___________

                                  JOHN CERVERIZZO,
                                                 Appellant
                                         v.

                           JOHN YOST, Warden, FCI Loretto
                       ____________________________________

                     On Appeal from the United States District Court
                        for the Western District of Pennsylvania
                             (D.C. Civil No. 3-09-cv-00286)
                       District Judge: Honorable Kim R. Gibson
                      ____________________________________

         Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)
         or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                    April 29, 2010

             Before: FUENTES, JORDAN and HARDIMAN, Circuit Judges

                              (Opinion filed: May 14, 2010)
                                       _________

                                        OPINION
                                        _________

PER CURIAM

       John Cerverizzo, a federal prisoner proceeding pro se, appeals from the District

Court’s dismissal of his habeas corpus petition for failure to exhaust administrative

remedies. For the reasons that follow, we will vacate and remand.
       Cerverizzo is currently serving a 70-month sentence for conspiracy to possess

cocaine with intent to distribute, 21 U.S.C. § 846. Bureau of Prisons (“BOP”) staff

interviewed Cerverizzo in August 2009, and recommended that he be allowed to serve the

final 150 to 180 days of his term of imprisonment in a halfway house.

       In September 2009, Cerverizzo challenged the BOP’s decision by filing an internal

administrative remedy informal resolution form. Cerverizzo disagreed with BOP’s

recommendation and requested to serve twelve months in a halfway house, the full

amount allowed under the Second Chance Act. See 18 U.S.C. § 3624. Relief was denied,

and Cerverizzo appealed to the Warden. He argued that it appeared that BOP was

violating the Second Chance Act by implementing a policy that categorically limits its

recommendations to a maximum of six months, as opposed to the full one-year

placement. The Warden denied Cerverizzo’s administrative appeal on October 13, 2009.

Cerverizzo did not administratively appeal the decision further.

       Instead, in November 2009, Cerverizzo filed the current habeas petition under 28

U.S.C. § 2241 challenging the BOP’s decision and general policy. He acknowledged his

failure to exhaust administratively, and requested that the District Court excuse

exhaustion as futile. Cerverizzo argued that because BOP issued the decision and policy

he challenges, the BOP would likely deny his administrative grievance. Thus, he

asserted, any further administrative exhaustion would have been futile.

       The Magistrate Judge found Cerverizzo’s argument unavailing and recommended



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dismissing Cerverizzo’s § 2241 petition for failure to exhaust available administrative

remedies. The Magistrate Judge stated “[t]here is no ‘futility’ exception to the exhaustion

of administrative remedies.” (Report at p. 4 n.2.) In addition, the Report noted that if

Cerverizzo was unsuccessful in the appeals process, he “can obtain review on the merits

when his administrative appeals are concluded.” (Id. at 4.) By order entered December

16, 2009, and over Cerverizzo’s objections, the District Court adopted the Magistrate

Judge’s Report and Recommendation and dismissed the petition without prejudice.

Cerverizzo timely appealed.1

       Ordinarily, we require federal prisoners to exhaust administrative remedies prior to

seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2241. See Moscato v. Fed.

Bureau of Prisons, 98 F.3d 757, 760 (3d Cir. 1996). However, we have held that the

administrative exhaustion requirement in this context may be excused if an attempt to

obtain relief would be futile or where the purposes of exhaustion would not be served.

See Woodall v. Fed. Bureau of Prisons, 432 F.3d 235, 239 n.2 (3d Cir. 2005);

Schandelmeier v. Cunningham, 819 F.2d 52, 53 (3d Cir. 1986); Gambino v. Morris, 134

F.3d 156, 171 (3d Cir. 1998) (Roth, J., concurring).

       To the extent the Magistrate Judge based his decision on the belief that no futility

exception exists when reviewing a § 2241 petition, we disagree. Moreover, the


  1
    We have appellate jurisdiction under 28 U.S.C. § 1291 and 28 U.S.C. § 2253(a), and
review the District Court’s ruling de novo. See Vega v. United States, 493 F.3d 310, 314
(3d Cir. 2007).

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Magistrate Judge’s decision to dismiss without prejudice to allow Cerverizzo to pursue

the administrative appeals process gives false hope. Given the time constraints set forth

in the BOP’s regulations, any further administrative appeal would be rejected as untimely

because Cerverizzo did not appeal the Warden’s response within 20 calendar days of

October 13, 2009. See 28 C.F.R. § 542.15(a). Thus, the District Court’s dismissal

without prejudice effectively forecloses any further judicial or administrative review.

       For these reasons, we will vacate the District Court’s dismissal and remand with

instructions to consider whether exhaustion should be excused, and if so, to consider

Cerverizzo’s claims on the merits. See Woodall, 432 F.3d at 239 n.2; Strong v. Schultz,

599 F. Supp. 2d 556 (D.N.J. 2009). In addition, the docket reveals that the government

was never served with Cerverizzo’s petition. The District Court may wish to consider

eliciting a response from the BOP before proceeding further in this matter.




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