                                                                             F I L E D
                                                                     United States Court of Appeals
                                                                             Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                             DEC 15 1998
                                   TENTH CIRCUIT
                                                                         PATRICK FISHER
                                                                                 Clerk

 LORENZO F. JIMENEZ,

                Petitioner - Appellant,                    No. 98-1259
           v.                                              D. Colorado
 JOHN M. HURLEY, J. GUADIAN,                          (D.C. No. 98-D-1253)
 R. BAYSINGER, J. RYMER, G. L.
 HERSBERGER, PATRICK R. KANE,
 ED CROSLEY, JOHN R. SIMPSON,

                Respondents - Appellees.


                              ORDER AND JUDGMENT           *




Before ANDERSON , KELLY , and BRISCOE , Circuit Judges.




       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. 34.1.9. This cause 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       This order and judgment is not binding precedent, except under the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. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3
      Lorenzo Fuentes Jimenez (“Petitioner”), an inmate appearing pro se, filed

an application for a writ of habeas corpus with the district court, pursuant to 28

U.S.C. § 2241. The district court denied the application, as well as Petitioner’s

motion for leave to proceed in forma pauperis on appeal. The matter is now

before us on Petitioner’s renewed motion for leave to proceed without prepayment

of costs or fees.

      Petitioner has been incarcerated for over a decade for multiple instances of

assault on correctional officers. In his § 2241 application filed with the district

court, Petitioner alleged that he was unable to mount an administrative appeal

from a decision denying him parole, because he was not given a copy of the

United States Parole Commission’s decision until the time for mounting such an

appeal had passed. Federal regulations allow decisions of the Parole Commission

to be appealed to the National Appeals Board, but such appeals “must be filed . . .

within thirty days from the date of entry” of the decision of the Parole

Commission. 28 C.F.R. § 2.26(a) (1998). Petitioner alleges that prison officials

refused to give him a copy of the decision denying him parole until after the

thirty-day period had expired.

      The district court denied Petitioner’s application, stating that, first,

Petitioner’s claim was not a challenge to the validity or execution of his sentence,

and therefore was cognizable as a   Bivens action but not under federal habeas,   see


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Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics         , 403

U.S. 388 (1971), and second, even if Petitioner’s claim were cognizable under

federal habeas corpus statutes, it would fail anyway, because the record

demonstrated that Petitioner was given a copy of the relevant decision on the very

day it was received at the prison.

       On appeal, Petitioner renews the arguments made before the district court,

and, in addition, appears to allege that the Parole Commission’s decision to deny

him parole was erroneous. We address Petitioner’s arguments in turn.

       As to Petitioner’s first claim, we need not decide whether the district court

was correct when it stated that Petitioner’s original allegation was not cognizable

under federal habeas corpus statutes.      We think that, regardless of whether

Petitioner’s application was properly presented to the district court, his claim

fails. Petitioner’s parole hearing occurred on December 6, 1995. The Parole

Commission did not issue a decision denying parole until August 29, 1996; the

prison received a copy of that decision on August 30, 1996, and Petitioner was

given a copy of the document that same day. R. Doc. 3, Exh. A. The record

clearly establishes that Petitioner’s claim is meritless.   1




       The Parole Commission also issued a different notice regarding Petitioner
       1

on January 3, 1996. The prison received a copy of this notice on January 30,
1996, and Petitioner claims he was not given a copy of this notice until October
1996, even though he requested one in May 1996. R. Doc. 3, at 8. Because the
                                                                     (continued...)

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       Next, we address Petitioner’s contention that the decision of the Parole

Commission to deny him parole was erroneous. Petitioner makes this argument

for the first time on appeal, and, because we do not consider claims not first

presented to the district court,   Walker v. Mather (In re Walker)    , 959 F.2d 894,

896 (10th Cir. 1992) (stating that “a federal appellate court does not consider an

issue not passed upon by the court below”), we may not consider Petitioner’s new

argument. We note, however, that such objections are indeed properly brought as

§ 2241 petitions, but only after first exhausting administrative remedies,     see

Fuller v. Rich , 11 F.3d 61, 62 (5th Cir. 1994) (stating that “[a] prisoner

challenging a Parole Commission decision is required to exhaust administrative

remedies before seeking habeas relief in federal court”), and then making the

argument to the district court in the first instance   . Petitioner has done neither.

       First, Petitioner has presented this court with no evidence that he appealed

the Parole Commission’s decision after receiving the notice on August 30, 1996,



       1
        (...continued)
prison failed to give Petitioner a copy of this notice until five months after he
requested one, Petitioner claims his rights were violated. Petitioner has simply
confused the two notices. The January 1996 notice apparently was a decision
stemming from a parole hearing that took place before the December 1995 parole
hearing, and the notice contains only a short, two-sentence statement ordering
Petitioner to participate in “anger control management counseling” and in an “in-
patient or an out-patient mental health program.” R. Doc. 3, Exh. B. The August
1996 notice, on the other hand, is the notice denying parole to Petitioner. R. Doc.
3, Exh. A.

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and does not argue that he comes within any of the established exceptions to the

exhaustion requirement. Second, even if Petitioner could get around the

exhaustion requirement, he cannot escape the fact that he simply did not present

this claim to the district court, and because the district court had no opportunity to

pass on the issue, we will not consider it.

       Because Petitioner can make no “nonfrivolous argument on the law and

facts in support of the issues raised on appeal,”     DeBardeleben v. Quinlan , 937

F.2d 502, 505 (10th Cir. 1991), we DENY his renewed motion for leave to

proceed without prepayment of costs or fees, and DISMISS the appeal.

                                                    ENTERED FOR THE COURT


                                                    Stephen H. Anderson
                                                    Circuit Judge




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