                                                                        FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                 December 1, 2009
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                   Clerk of Court
                                 TENTH CIRCUIT



 SIMON LUCERO,

               Petitioner - Appellant,                   No. 09-1344
          v.                                            (D. Colorado)
 RON WILEY, Warden, Federal Prison            (D.C. No. 1:09-CV-01118-ZLW)
 Camp - Florence,

               Respondent - Appellee.


                            ORDER AND JUDGMENT *


Before HARTZ, EBEL, and SEYMOUR, Circuit Judges.


      Simon Lucero, a federal prisoner appearing pro se, appeals the dismissal by

the United States District Court for the District of Colorado of his application for

relief under 28 U.S.C. § 2241. Exercising jurisdiction under 28 U.S.C. § 1291,

we affirm.




      *
       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not binding precedent except under the doctrines of law of the case, res judicata,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.
DISCUSSION

      Mr. Lucero, is housed at the Federal Prison Camp in Florence, Colorado

(FPC). He is serving a five-year sentence, with a projected release date of

November 8, 2012, for distribution of methamphetamine in violation of 21 U.S.C.

§ 841(A)(1). He applied to the district court for relief under 28 U.S.C. § 2241.

The application asserts that officials at FPC are violating the requirements of

18 U.S.C. §§ 3621(b) and 3624(c)(1)-(2) by categorically denying (1) the transfer

of eligible nonprerelease inmates to community correction centers and (2) all

inmates more than six months in residential re-entry centers. The district court

dismissed his claim without prejudice on the ground that he had not exhausted all

his administrative remedies. Mr. Lucero admitted that he has not pursued any

administrative avenues for relief; but he argued in district court that doing so

would have been futile, and thus not required, because any requested relief would

have been categorically denied.

      We review de novo the district court’s denial of relief under § 2241. See

Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir. 1996). Because Mr. Lucero is

acting pro se, we construe his pleadings liberally. See Kay v. Bemis, 500 F.3d

1214, 1218 (10th Cir.2007).

      Exhaustion of administrative remedies is a prerequisite to federal habeas

corpus relief. See McCormick v. Kline, 572 F.3d 841, 851 (10th Cir. 2009); Bun

v. Wiley, No. 09-1289, 2009 WL 3437831 (10th Cir. Oct. 27, 2009) (unpublished).

                                         -2-
On appeal Mr. Lucero acknowledges that he has not pursued any administrative

remedies. He contends, however, that he is not required to exhaust administrative

remedies because he is not challenging the application of Bureau of Prisons

regulations or policies but, rather, their validity. But Mr. Lucero did not raise

this contention in district court. Therefore, we decline to address it. See King v.

United States, 301 F.3d 1270, 1274 (10th Cir.2002) (As a general rule, “this court

will not consider an issue on appeal that was not raised below.”). Accordingly,

we hold that Mr. Lucero had no excuse for failing to exhaust his administrative

remedies.

      Mr. Lucero also argues on appeal that the district court abused its

discretion in allowing the government “20 days to file a Preliminary Response

with respect to the exhaustion of administrative remedies.” Aplt. Br. at 3. He

asserts that authorizing the response “delayed any relief that may have been

obtained by an appeal,” and contends that the district court instead “should have

issued an order dismissing the case forthwith.” Id. In light of our ruling on

exhaustion, however, Mr. Lucero cannot show any prejudice. He has not

prevailed on appeal, so he has suffered no injury by any delay in our review of

the district court’s decision.




                                          -3-
CONCLUSION

      We AFFIRM the district court’s dismissal without prejudice of

Mr. Lucero’s § 2241 application. We GRANT Mr. Lucero’s motion for leave to

proceed in forma pauperis.

                                    ENTERED FOR THE COURT


                                    Harris L Hartz
                                    Circuit Judge




                                      -4-
