                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                 February 24, 2010
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                    Clerk of Court
                                  TENTH CIRCUIT


 RANDY C. DAYBELL,

          Petitioner-Appellant,
                                                         No. 09-1335
 v.                                           (D.C. No. 09-cv-1249-ZLW-BNB)
                                                          (D. Colo.)
 BLAKE DAVIS, * Warden, Federal
 Prison Camp—Florence,

          Respondent-Appellee.


                            ORDER AND JUDGMENT **


Before KELLY, BRISCOE, and HOLMES, Circuit Judges.


      Randy C. Daybell, a prisoner proceeding pro se, appeals the district court’s

dismissal of his petition for writ of habeas corpus. We exercise jurisdiction




      *
            Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Blake
Davis is substituted for Ron Wiley as the Appellee in this action.
      **
          This Order and Judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Federal Rule of Appellate
Procedure 32.1 and Tenth Circuit Rule 32.1. After examining the briefs and the
appellate record, this three-judge panel has determined unanimously that oral
argument would not be of material assistance in the determination of this appeal.
See Fed. R. App. P. 34(a); 10th Cir. R. 34.1(G). The case is therefore ordered
submitted without oral argument.
pursuant to 28 U.S.C. §§ 1291 and 2253(a), and we AFFIRM the judgment of the

district court. 1

                                 BACKGROUND

       Mr. Daybell is currently incarcerated at the Florence prison camp facility

(“FPC”), part of the Federal Correctional Complex in Florence, Colorado. He

filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241, claiming

that FPC officials were unlawfully denying on a categorical basis requests by

prisoners to complete portions of their sentences in halfway houses known as

community corrections centers (“CCCs”) and residential re-entry centers

(“RRCs”). This categorical treatment, Mr. Daybell contended, also violated

various BOP regulations and ignored 18 U.S.C. § 3621(b)’s requirement that

prisoner transfer and release requests be evaluated individually. Along with the

habeas petition, Mr. Daybell filed a motion seeking class certification and the

appointment of class counsel for a group of prisoners bringing identical claims.

       Mr. Daybell conceded that he had failed to exhaust administrative remedies

provided by the Bureau of Prisons (“BOP”) before filing suit, but contended that

exhaustion would be futile because the BOP had predetermined the issue. He

relied for this argument primarily on Wedelstedt v. Wiley, 477 F.3d 1160 (10th

Cir. 2007), in which we examined previous BOP regulations that explicitly placed


       1
             Because Mr. Daybell is proceeding pro se, we construe his filings
liberally. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam).

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categorical limits on the release periods available to prisoners. Id. at 1167. We

invalidated those regulations because they “contradict[ed] Congress’ clear intent

that all inmate placement and transfer decisions be made individually and with

regard to the five factors enumerated in 18 U.S.C. § 3621(b).” Id. at 1162.

      After Wedelstedt, the BOP revised the regulations and issued two

memoranda instructing its staff to undertake individualized determinations in

release decisions. But Mr. Daybell contended that these changes were matters of

form and not substance. According to Mr. Daybell, the “intransigent” BOP had

simply “[u]pdat[ed] invalidated regulations to circumvent [Wedelstedt]”; in

practice, FPC officials still responded categorically to release requests. R. at 62

(Reply to Resp’t’s Prelim. Resp., filed June 26, 2009). In support of this

argument, Mr. Daybell stated that “[n]otwithstanding that there are 472 federal

inmates at the minimal security prison camp, not one qualifies for CCC or RRC!”

R. at 16 (Notice of Mot. for the Ct. to Take Judicial Notice, filed May 29, 2009).

Mr. Daybell argued that the BOP’s decision-making approach—categorical in

practice, if not by its terms—ran afoul of our holding in Wedelstedt. He urged the

district court to invalidate the new regulations under Wedelstedt and to permit his

habeas petition to proceed because exhaustion would be futile.

      The district court refused. It rejected Mr. Daybell’s futility argument,

concluding that his reliance on Wedelstedt “lacks merit because Mr. Daybell

concedes that the BOP has adopted new regulations.” R. at 69 (Order of

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Dismissal, filed July 22, 2009). The district court concluded that the BOP

memoranda repudiated categorical predeterminations of release eligibility. Thus,

the district court determined that Mr. Daybell could not show that exhaustion was

futile because—unlike in Wedelstedt—he could not show that the BOP had

predetermined prisoner release decisions. The district court dismissed Mr.

Daybell’s habeas petition without prejudice, and denied as moot the motion

seeking class certification and the appointment of class counsel. Mr. Daybell

timely appealed.

                           STANDARD OF REVIEW

      The district court dismissed Mr. Daybell’s § 2241 petition for failure to

exhaust administrative remedies. We review the legal aspects of this decision de

novo, and any factual findings for clear error. United States v. Eccleston, 521

F.3d 1249, 1253 (10th Cir.), cert. denied, 129 S. Ct. 430 (2008).

                                  DISCUSSION

      The exhaustion of available administrative remedies is a prerequisite for

§ 2241 habeas relief, although we recognize that the statute itself does not

expressly contain such a requirement. See Williams v. O’Brien, 792 F.2d 986,

987 (10th Cir. 1986) (per curiam) (noting that “judicial intervention is usually

deferred until administrative remedies have been exhausted”). A narrow

exception to the exhaustion requirement applies if a petitioner can demonstrate

that exhaustion would be futile. See Fazzini v. Ne. Ohio Corr. Ctr., 473 F.3d 229,

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235–36 (6th Cir. 2006) (recognizing futility exception in context of § 2241

petition); cf. Fairchild v. Workman, 579 F.3d 1134, 1155 (10th Cir. 2009)

(discussing futility as to 28 U.S.C. § 2254 petitions).

      BOP regulations require a prisoner to attempt informal resolution of a

complaint and, if that fails, to submit a formal request for an administrative

remedy. See 28 C.F.R. §§ 542.13–.14. If the inmate does not obtain a

satisfactory resolution from the institution itself, he then may file a regional

appeal, followed by a national appeal. Id. § 542.15(a). It is undisputed that Mr.

Daybell did not exhaust these administrative remedies.

      On appeal, Mr. Daybell again argues that exhaustion would be futile

because the BOP has continued its categorical release policy despite our holding

in Wedelstedt. In raising this claim, Mr. Daybell contends that he is “in no way

challenging the application of the BOP regulations, policies, procedures, and

memorandums” but only their validity. Aplt. Br. at 2. He relies upon Wedelstedt

and Woodall v. Federal Bureau of Prisons, 432 F.3d 235, 239 n.2 (3d Cir. 2005),

another case involving a challenge to the previous, categorical BOP regulations.

See Aplt. Br. at 3.

      In the time since Mr. Daybell filed his appeal in this case, we have issued a

published opinion addressing the questions presented here. See Garza v. Davis,

___ F.3d ____, No. 09-1448, 2010 WL 537769 (10th Cir. Feb. 17, 2010). We




                                          -5-
reject Mr. Daybell’s claims for substantially the reasons provided in Garza. Id. at

*4–5.

        As an initial matter, Mr. Daybell’s reliance on Wedelstedt and Woodall is

misplaced. As the district court noted, “to the extent the futility argument is

premised on . . . Wedelstedt, that argument lacks merit because Mr. Daybell

concedes that the BOP has adopted new regulations.” R. at 69. We reached the

same conclusion in Garza: “BOP has adopted new interim regulations to replace

those that were invalidated in Wedelstedt. Those regulations perforce must be the

focus of Mr. Garza’s challenge.” Garza, 2010 WL 537769, at *5.

        Nor does it avail Mr. Daybell to claim that he is attacking the validity of

the BOP’s regulations, policies, and procedures, and not their application. “[A]

prisoner cannot do away with the exhaustion requirement simply by framing his

habeas petition as an attack on a regulation’s validity rather than its application.

The relevant question remains whether it would be futile to require the prisoner to

go through the BOP review process.” Id. (alteration and internal quotation marks

omitted). The regulations and memoranda at issue here, unlike those in

Wedelstedt, do not indicate a policy of categorical denial and so they give us no

reason to believe that exhaustion would be futile. See id.

        Finally, even assuming that Mr. Daybell correctly claims that FPC staff are

in practice making release determinations in a categorical manner, this does not

mean that exhaustion is futile because—unlike in Wedelstedt, where the BOP

                                           -6-
itself had adopted a categorical policy—the FPC’s purported actions do not mean

that the BOP has predetermined the issue. “[T]o the extent that [Mr. Daybell]

argues that exhaustion is futile because officials at the Florence prison camp are

categorically denying prisoner transfer requests, the higher administrative review

levels available (regional and national appeals) demonstrate that exhaustion is not

futile.” Id. Where such a possibility of higher-level review exists, the exhaustion

requirement may not be evaded. Cf. Tesoro Ref. & Mktg. Co. v. F.E.R.C., 552

F.3d 868, 874 (D.C. Cir. 2009) (“Ordinarily, a party invokes the futility doctrine

to prove the worthlessness of an argument before an agency that has rejected it in

the past. Tesoro tries to argue that it would have been futile to raise an argument

because the agency would reject it in the future.”).

      The district court denied Mr. Daybell’s motion to proceed in forma

pauperis (“IFP”) and certified, pursuant to 28 U.S.C. § 1915(a)(3), that Mr.

Daybell’s appeal was not taken in good faith because he could not show the

existence of a reasoned, nonfrivolous argument on the law and facts. We agree,

particularly in light of the repeated failed appeals from other FPC inmates raising

similar arguments. See Ciocchetti v. Wiley, No. 09-1336, 2009 WL 4918253

(10th Cir. Dec. 22, 2009); Torres-Villa v. Davis, No. 09-1366, 2009 WL 4071834

(10th Cir. Nov. 25, 2009); Bun v. Wiley, No. 09-1289, 2009 WL 3437831 (10th

Cir. Oct. 27, 2009); see also Lucero v. Wiley, No. 09-1344, 2009 WL 4269700

(10th Cir. Dec. 1, 2009) (dismissing appeal from Florence inmate raising similar

                                         -7-
arguments for failure to exhaust on slightly different grounds); Padilla v. Wiley,

No. 09-1362, 2009 WL 4269699 (10th Cir. Dec. 1, 2009) (same). Accordingly,

we deny IFP relief.

                                  CONCLUSION

      As the district court held, Mr. Daybell failed to exhaust his administrative

remedies and cannot show that exhaustion would be futile. Thus, we AFFIRM

the district court’s dismissal of his petition for writ of habeas corpus. We DENY

Mr. Daybell’s motion to proceed IFP.



                                       Entered for the Court


                                       JEROME A. HOLMES
                                       Circuit Judge




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