                                                             FILED
                                                 United States Court of Appeals
                    UNITED STATES COURT OF APPEALS       Tenth Circuit

                           FOR THE TENTH CIRCUIT                         May 30, 2014

                                                                     Elisabeth A. Shumaker
                                                                         Clerk of Court
BEAUX GORDON SINES,

             Petitioner-Appellant,

v.                                                        No. 13-1489
                                                 (D.C. No. 1:13-CV-01230-LTB)
ED CALEY, Warden, Trinidad                                  (D. Colo.)
Correctional Facility,

             Respondent,

and

UNITED STATES OF AMERICA,

             Interested Party-Appellee.


                            ORDER AND JUDGMENT*


Before HOLMES, ANDERSON, and BALDOCK, Circuit Judges.


      Beaux Gordon Sines, a Colorado state prisoner appearing pro se, appeals the

district court order dismissing his 28 U.S.C. § 2241 petition for writ of habeas


*
      After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
corpus. Mr. Sines’ § 2241 petition challenged the legality of a federal detainer

lodged by the United States Marshals Service (USMS) with the Colorado Department

of Corrections (CDOC), as well as the Bureau of Prisons’ (BOP) computation of his

federal sentence. The district court dismissed the petition without prejudice so that

Mr. Sines could exhaust his administrative remedies. Exercising jurisdiction under

28 U.S.C. § 1291, we affirm.

      Mr. Sines pleaded guilty in 2007 to possession of a stolen firearm in violation

of 18 U.S.C. § 922(j) and was sentenced to eighty-four months’ imprisonment,

followed by three years of supervised release. In May 2012, while on supervised

release, Mr. Sines pleaded guilty in Colorado state court to unlawful possession of

controlled substances and was sentenced to seven years’ imprisonment. Because

Mr. Sines violated the conditions of his federal supervised release, the district court

sentenced him in January 2013, to twenty-four months’ imprisonment, to be served

concurrently with his Colorado sentence. Two days later, the USMS lodged with the

CDOC a detainer based on the supervised-release sentence, directing it to notify the

USMS before releasing Mr. Sines from state custody. Mr. Sines’ supervised-release

sentence is projected to expire in October 2014.

      In his § 2241 petition, Mr. Sines claims that the USMS lodged an unlawful

detainer. He also claims that the BOP failed to award him pre-sentence confinement

credit toward the supervised-release sentence based on time in state custody from

October 2011 to July 2012, when he was unable to bond out because of a federal


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hold, as well as his time in federal pre-trial custody from July 2012 to January 2013.

The district court ruled that Mr. Sines failed to exhaust his BOP administrative

remedies.

      The BOP administrative remedies apply to inmates incarcerated in BOP

facilities as well as to “former inmates for issues that arose during their

confinement.” 28 C.F.R. § 542.10(b). The Attorney General, through the BOP,

computes any credit due for prior incarceration under 18 U.S.C. § 3585(b). See

United States v. Wilson, 503 U.S. 329, 334 (1992). “Federal regulations have

afforded prisoners administrative review of the computation of their credits,

see 28 C.F.R. §§ 542.10-542.16 (1990); and prisoners [are] able to seek judicial

review of these computations after exhausting their administrative remedies. . . .”

Id. at 335 (citations omitted). Part of the prior-custody credit Mr. Sines seeks is

based on the time he was in pre-trial custody in a BOP facility from July 2012 to

January 2013. Thus, the BOP administrative remedies apply to at least that portion

of his credit-computation § 2241 claim.

      Mr. Sines properly initiated his claims through the BOP administrative process

by submitting them to the BOP’s Designation and Sentence Computation Center (the

“DSCC”). He did not, however, appeal the DSCC’s denial of his claims to the BOP

Office of General Counsel, as required by 28 C.F.R. § 542.14(d)(5). Rather, he

mistakenly filed his appeal with the U.S. Attorney General. The district court ruled

that his administrative remedies were still available because the United States


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represented in its response brief that Mr. Sines could re-file his claims with the

DSCC and, if necessary, could file an appeal with the BOP Office of General

Counsel. See Aplt. App., Vol. 1, at 122 and n.1, 215. Mr. Sines moved for

reconsideration of the dismissal under Fed. R. Civ. P. 59(e), which the district court

denied.

      Mr. Sines appealed, and filed a Combined Opening Brief and Application for

Certificate of Appealability (COA).1 A COA is not required however, because

Mr. Sines is challenging his federal detention—that is, the federal detainer and the

computation of his federal supervised-release sentence—not his state detention.

See 28 U.S.C. § 2253(c)(1) (requiring a COA to appeal from habeas proceeding when

“the detention complained of arises out of process issued by a State court,” or the

proceeding was pursuant to § 2255); see also Montez v. McKinna, 208 F.3d 862, 867

and n.6 (10th Cir. 2000) (holding that “[§] 2253 clearly does not encompass

challenges to federal detention under § 2241,” (internal quotation marks omitted),

and that “a state prisoner seeking to challenge a detainer filed by a federal agency

does not need to file a COA to proceed on appeal.”).



1
       We deny Mr. Sines’ two motions to supplement the record on appeal with
correspondence relating to his post-judgment attempts to exhaust his administrative
remedies. We will not consider these documents on appeal because they were not
presented to the district court, and, indeed could not have been because they
post-date its judgment. See United States v. Kennedy, 225 F.3d 1187, 1191 (10th Cir.
2000) (“This court will not consider material outside the record before the district
court.”).


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      “We review the district court’s dismissal of a § 2241 habeas petition de novo.”

Garza v. Davis, 596 F.3d 1198, 1203 (10th Cir. 2010) (internal quotation marks

omitted). “The exhaustion of available administrative remedies is a prerequisite for

§ 2241 habeas relief, although we [have] recognize[d] that the statute itself does not

expressly contain such a requirement.” Id. “A narrow exception to the exhaustion

requirement applies if a petitioner can demonstrate that exhaustion is futile.” Id. We

have also held that when “prison officials prevent, thwart, or hinder a prisoner’s

efforts to avail himself of an administrative remedy, they render that remedy

‘unavailable’ and a court will excuse the prisoner’s failure to exhaust.” Little v.

Jones, 607 F.3d 1245, 1250 (10th Cir. 2010).

      On appeal, Mr. Sines argues the district court erred in dismissing for failure to

exhaust because he made a good-faith attempt to comply with the BOP administrative

remedies procedure and asked the BOP how to appeal its denial of his claim, but it

never told him he needed to appeal to the BOP Office of General Counsel. Even if

this were sufficient to establish that the BOP thwarted or hindered Mr. Sines’ ability

to exhaust—and we express no opinion on that issue—Mr. Sines still has an available

administrative remedy, because the United States has represented that Mr. Sines may

re-file his claims with the DSCC and, if necessary, file an appeal with the BOP

Office of General Counsel. Mr. Sines argues that no purpose would be served by

requiring him to exhaust his available remedies because the full factual record is




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before the court. But he has presented no evidence that administrative relief is

foreclosed, and we conclude he has not demonstrated futility.

      Next, Mr. Sines argues the district court abused its discretion in dismissing his

entire § 2241 petition. He argues, as he did in his Rule 59(e) motion, that he did not

have an administrative remedy with the BOP to challenge the detainer or the denial

of credit for his time in state custody, and therefore, the district court should not have

dismissed those claims. The district court denied his motion, concluding that the

purposes of exhaustion would be met by requiring Mr. Sines to raise all of his

prior-custody credit claims with the BOP; that Mr. Sines would not be prejudiced by

exhausting the unexhausted claim before disposition of the exhausted claims; and that

judicial economy would not be served by allowing him to bifurcate his claims into

separate habeas proceedings. We find no abuse of discretion. See Rhines v. Weber,

544 U.S. 269, 276-79 (2005) (holding that district court has discretion to determine

how to proceed with a mixed habeas petition of exhausted and unexhausted claims).

Further, Mr. Sines waived his argument that he should have been permitted to file an

amended petition that omitted the unexhausted claims (which would have been his

third amendment), because he failed to raise this argument in the district court.

      None of Mr. Sines’ remaining arguments has merit. The district court

correctly required Mr. Sines to name his CDOC warden as the respondent in his

§ 2241 petition. See 28 U.S.C. § 2242 (providing that a habeas petitioner shall name

as respondent “the person who has custody over him”); id. § 2243 (“The writ . . .


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shall be directed to the person having custody of the person detained.”). The district

court did not contravene Fed. R. Civ. P. 72 when it dismissed the § 2241 petition

before the magistrate judge made a recommendation or ruled on Mr. Sines’ pending

objections. Mr. Sines filed with the magistrate judge objections to the government’s

response, to the government’s sur-reply and to the order permitting the government to

file the sur-reply. The district court’s dismissal order both implicitly and expressly

rejected these objections. See Hill v. SmithKline Beecham Corp., 393 F.3d 1111,

1116 (10th Cir. 2004) (holding that a district court’s entry of judgment without

expressly ruling on an objection is tantamount to a denial or rejection of those

arguments when there is no basis to conclude the court did not consider the

objections). Further, the exhaustion issue was never referred to the magistrate judge

for a recommendation. Finally, there is no merit to Mr. Sines’ assertion that the

district court unreasonably delayed in ruling on his petition; it ruled six months after

the petition was first filed and three months after Mr. Sines filed his second amended

petition.

       We deny Mr. Sines’ motions to supplement the record on appeal, and grant his

request to proceed in forma pauperis. The judgment of the district court is affirmed.


                                                Entered for the Court


                                                Jerome A. Holmes
                                                Circuit Judge



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