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

                                    TENTH CIRCUIT                         January 6, 2012

                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court

JAMES V. CANTRALL,

          Petitioner - Appellant,
                                                            No.11-3167
v.
                                                   (D.C. No. 10-CV-03197-RDR)
                                                             (D. Kan.)
C. CHESTER, Warden,

          Respondent - Appellee.


                            ORDER AND JUDGMENT *


Before LUCERO, EBEL and GORSUCH, Circuit Judges.



      James V. Cantrall, a pro se federal prisoner, seeks review of the district

court’s denial of his claim for relief under 28 U.S.C. § 2241. Exercising

jurisdiction under 28 U.S.C. § 1291, we conclude that Mr. Cantrall has failed to

exhaust available administrative remedies and therefore DISMISS his appeal.

      Mr. Cantrall was incarcerated in a federal prison in Kansas after pleading

guilty to drug charges. At Mr. Cantrall’s sentencing in November 2008, the

sentencing court imposed a two-point gun enhancement. While incarcerated, Mr.

Cantrall participated in a Residential Drug Adjustment Program (RDAP). In May
      *
         This order and judgment is not binding precedent except under the doctrines of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.
2010, Mr. Cantrall sought a one-year reduction in his sentence pursuant to 18

U.S.C. § 3621(e), which permits the Bureau of Prisons (BOP) to reduce an

inmate’s sentence by up to one year if he was convicted of a nonviolent offense

and has successfully completed a RDAP. Mr. Cantrall’s RDAP coordinator

advised him that he would not receive the reduction due to his gun-related

sentence enhancement.

      In May 2010, Mr. Cantrall filed a “BP-8” informal resolution, seeking

administrative relief from BOP in regards to his RDAP coordinator’s decision.

His BP-8 request was denied. Mr. Cantrall then filed a “BP-9” appeal with his

assigned counselor in the administrative appeals system, seeking the same one-

year reduction and asking BOP to “[d]o away with unequal application of the

law.” His BP-9 request was rejected and returned on the grounds that he “did not

attempt informal resolution prior to submission of administrative remedy, or . . .

did not provide the necessary evidence of [his] attempt at informal resolution.”

Mr. Cantrall then filed a “BP-10” appeal to BOP’s regional officer, submitting

the exact language contained in his BP-9 appeal—that is, asking for a sentence

reduction and asserting unequal application of the law, but not arguing that he

had in fact attempted informal resolution and that his BP-9 appeal had

nevertheless been improperly rejected. Mr. Cantrall’s BP-10 request was rejected

for two reasons: (1) that he had not attempted informal resolution, or had not

provided evidence of having done so (i.e., the same reason given by the BP-9

rejection); and (2) that he needed first to file his BP-9 request through the
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institution for the warden’s review before filing a BP-10 appeal to that level.

After that, Mr. Cantrall filed a “BP-11” appeal to the central office, once again

submitting the identical language from initial appeal—and once again not

addressing the procedural reasons for which his last appeal had been denied.

That B-11 appeal was rejected for having been submitted to the wrong level, and

Mr. Cantrell was directed to re-file at a lower level.

      At that point, in October 2010, having heard from the highest level in

BOP’s administrative appeals system, Mr. Cantrall brought his case to the district

court for the District of Kansas. Seeking relief under 28 U.S.C. § 2241, Mr.

Cantrall petitioned the district court to order the BOP to grant him a one-year

sentence reduction under 18 U.S.C. § 3621(e). He argued that BOP’s denial of

the reduction based on the gun enhancement in his sentencing was both

unconstitutional and contrary to the statutory directive, given that he was not

convicted of the gun element, which was used only in sentencing. The district

court ruled that it was initially inclined to reject Mr. Cantrall’s petition on the

grounds that Mr. Cantrall had failed to exhaust administrative remedies and, in

the alternative, that his claim was without merit; but the court granted Mr.

Cantrall leave to show cause why dismissal was inappropriate. After Mr. Cantrall

responded, the district court denied relief, noting that it “continue[d] to question”

whether Mr. Cantrall had exhausted available administrative remedies, and

holding, in any case, that the petition was without merit.



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      We review de novo the district court’s legal conclusions in dismissing Mr.

Cantrall’s § 2241 habeas petition. See Garza v. Davis, 596 F.3d 1198, 1203 (10th

Cir. 2010). “The exhaustion of available administrative remedies is a prerequisite

for § 2241 habeas relief . . . [though] [a] narrow exception to the exhaustion

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

(citations omitted). To achieve exhaustion in this case under BOP regulations,

Mr. Cantrall needed first to attempt informal resolution of a dispute, then to

submit a formal request for an administrative remedy to the institution, then to

file a regional appeal followed by a national appeal. 28 C.F.R. §§ 542.13-14 and

542.15(a); see Garza, 596 F.3d at 1204. Crucially, “exhaustion of administrative

remedies . . . means using all steps that the agency holds out, and doing so

properly (so that the agency addresses the issues on the merits).” Woodford v.

Ngo, 548 U.S. 81, 90 (2006) (quotation marks omitted). Mere “good-faith efforts

to comply with grievance procedures . . . do[] not excuse failure to exhaust.”

Bridgeforth v. Workman, 410 Fed. App’x 99, 100-01 (10th Cir. 2010)

(unpublished).

      In this case, Mr. Cantrall did not exhaust the BOP’s available

administrative remedies because, as the district court observed, his appeals were

denied on procedural grounds, so the BOP never denied his claim on the merits.

We recognize an exception to the exhaustion requirement in situations where

exhaustion would be futile, Garza, 596 F.3d at 1203-04, but this is not such a

situation. Mr. Cantrall’s administrative appeals were rejected due to procedural
                                         4
defects with his filings, and nothing suggests that the administrators necessarily

would have rejected his claims on the merits had he complied with proper

procedures or, if he was in compliance at the outset, had he pointed out to the

administrators why the prior rejection of his claim on procedural grounds had

been unwarranted. Indeed, the fact that Mr. Cantrell, as he notes, “did not ask for

anything different at each step of the way” (ROA at 40) hurts his case, rather than

helps it: it highlights Mr. Cantrell’s failure to argue, in his series of

administrative appeals, that his initial claim for relief was procedurally proper.

Had he addressed that, perhaps the alleged procedural deficiency might have been

cured, or recognized as non-existent, in which case he could have obtained a

decision from BOP on the merits of his claim. Thus, as the futility exception

does not apply because nothing indicates that administrative relief was

“effectively foreclosed” to Mr. Cantrall, see Goodwin v. Oklahoma, 923 F.2d

156, 158 (10th Cir. 1991), we find that Mr. Cantrall failed to exhaust

administrative remedies prior to filing his § 2241 habeas petition.

      For the foregoing reasons, without reaching the merits of Mr. Cantrall’s

claim, we DISMISS this appeal.



                                        ENTERED FOR THE COURT



                                        David M. Ebel
                                        Circuit Judge


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