                                                                          FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                  October 14, 2009
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                    Clerk of Court
                                TENTH CIRCUIT



 TIMOTHY D. SAMPLES,

               Petitioner-Appellant,                      No. 09-1257
          v.                                              (D. of Colo.)
 RON WILEY, Warden, Federal Prison                (D.C. No. 09-cv-569-ZLW)
 Camp,

               Respondent-Appellee.


                           ORDER AND JUDGMENT *


Before TACHA, TYMKOVICH, and GORSUCH, Circuit Judges. **


      Timothy D. Samples, a federal prisoner proceeding pro se, appeals the

district court’s denial of his petition for a writ of habeas corpus under

28 U.S.C. § 2241. Exercising jurisdiction under 28 U.S.C. §§ 1291 and 2253, we

AFFIRM the ruling of the district court.




      *
         This order and judgment is not binding precedent except under the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.
      **
         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 cause is therefore ordered submitted without oral argument.
                                  I. Background

      Samples is currently serving a fifty-one month prison sentence in the

custody of the United States Bureau of Prisons (BOP) in Florence, Colorado.

Taking into account good-conduct time, his projected release date is May 3, 2010.

This § 2241 habeas petition relates to Samples’s desire to be placed immediately

into a Residential Reentry Center (RRC or halfway house) for a twelve-month

period.

      In his petition, Samples asserts that the BOP denied him a twelve-month

placement in an RRC, despite the fact that he completed the Residential Drug

Abuse Treatment Program (RDAP) on March 3, 2009. Samples contends that,

pursuant to 42 U.S.C. § 17541(a)(2)(A) and 18 U.S.C. § 3624(c), his completion

of the RDAP entitles him to be considered for a twelve-month placement in a

halfway house. He also asserts that, in violation of 18 U.S.C. § 3624(c) and

18 U.S.C. § 3621(e)(2)(B), the BOP never places prisoners, including those who

complete the RDAP, in RRCs for more than six months. Further, Samples asserts

that it would have been futile for him to attempt to exhaust his administrative

remedies, because the BOP administrative procedure would not have been

completed in time for him to be awarded a twelve-month placement in an RRC.

      The BOP administrative remedy procedure permits inmates to seek formal

review of issues relating to any aspect of their confinement. See 28 C.F.R.

§ 542.10(a). A set of regulations, 28 C.F.R. §§ 542.10S542.19, governs the BOP

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administrative process. Under the BOP procedure, prisoners must first present

their complaints to prison staff informally. See 28 C.F.R. § 542.13. If inmates

are unable to resolve their issues informally, they may file formal administrative

remedy requests, generally with the wardens of the facilities where they are

incarcerated. See 28 C.F.R. § 542.14. If prisoners are unsatisfied with the

responses they receive from the wardens, they may file an appeal with the

appropriate regional director. See 28 C.F.R. § 542.15. Finally, if inmates are

dissatisfied with the responses of the regional directors, they may file an appeal

with the general counsel. See id.

      The government presents evidence that Samples has initiated the formal

BOP administrative procedure three times since his incarceration began. None of

those instances, however, relate to a request for placement at an RRC for a period

exceeding six months. Samples concedes that he has not exhausted his

administrative remedies with regard to RRC placement.

                                    II. Discussion

      We review the district court’s denial of habeas relief de novo, see Fricke v.

Sec’y of the Navy, 509 F.3d 1287, 1289 (10th Cir. 2007), and construe Samples’s

pro se petition liberally, see Van Deelan v. Johnson, 497 F.3d 1151, 1153 n.1

(10th Cir. 2007). Because Samples is a federal prisoner proceeding under § 2241,

he need not obtain a certificate of appealability to appeal the district court’s




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denial of habeas relief. See Montez v. McKinna, 208 F.3d 862, 867 (10th Cir.

2000).

         Before seeking relief under § 2241, federal prisoners must exhaust their

administrative remedies. See Williams v. O’Brien, 792 F.2d 986, 987 (10th Cir.

1986) (per curiam). As the Supreme Court has noted, this exhaustion requirement

is important because it both protects administrative agency authority and

promotes efficiency in adjudicating claims. See Woodford v. Ngo, 548 U.S. 81,

89 (2006). Inmates may not exhaust their administrative remedies by failing to

employ them. See Jernigan v. Stuchell, 304 F.3d 1030, 1033 (10th Cir. 2002)

(“[Petitioner] may not successfully argue that he had exhausted his administrative

remedies by, in essence, failing to employ them and since he may now be time

barred from pursuing them, they are exhausted by default.”). Furthermore, “[a]

prisoner cannot manufacture exigency by tarrying.” Richmond v. Scibana, 387

F.3d 602, 604 (7th Cir. 2004).

         While Samples may have colorable arguments supporting his claims, we

nevertheless decline to reach them because Samples has failed to exhaust his

administrative remedies. Samples admits that he has not exhausted the BOP

administrative process, but asserts that his failure to do so should not bar his

petition because such efforts would be futile. Samples contends that the

administrative process is too slow and that it was unlikely that the BOP procedure

would have been completed by May 3, 2009, the date upon which Samples would

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have needed to be transferred to an RRC in order to receive a twelve-month RRC

placement.

      Despite this argument, futility does not excuse Samples’s failure to exhaust

his administrative remedies. Samples completed the RDAP on March 3, 2009 and

desired to be placed in an RRC on May 3, 2009. At a minimum, he had two

months with which to engage the BOP administrative procedure. It was entirely

possible that Samples could have completed the BOP administrative process

during that period. Had Samples pursued his administrative remedies, he may

have achieved a result in his favor or otherwise obtained a final determination

concerning his RRC-placement request.

      Moreover, the record indicates that Samples was aware that he would likely

only receive a six-month placement in an RRC long before he completed the

RDAP. Samples has not demonstrated, nor has the court found anything to

suggest, that he was required to complete the RDAP before requesting a twelve-

month placement in an RRC. Had Samples initiated the BOP administrative

process prior to completing the RDAP, it is likely that he could have exhausted

his administrative remedies and sought judicial review more than a year before

his projected release date. Samples’s decision to put off engaging the BOP

administrative process, and any delay or alleged futility that decision created,

does not excuse his failure to exhaust his administrative remedies.




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                                III. Conclusion

         Accordingly, we AFFIRM the ruling of the district court. We DENY

Samples’s motion to proceed in forma pauperis. While Samples has shown a

financial inability to pay the required fees, he has not demonstrated a reasoned,

non-frivolous argument on the law and facts in support of the issues raised on

appeal. See McIntosh v. U.S. Parole Comm’n, 115 F.3d 809, 812S13 (10th Cir.

1997).

                                              Entered for the Court,

                                              Timothy M. Tymkovich
                                              Circuit Judge




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