                                                                      FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                               November 25, 2009
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                   Clerk of Court
                                  TENTH CIRCUIT


 FRANCISCO TORRES-VILLA,

          Petitioner-Appellant,
                                                        No. 09-1366
 v.
                                                (D.C. No. 09-cv-01230-ZLW)
                                                         (D. Colo.)
 BLAKE DAVIS, * Warden, Federal
 Prison Camp – Florence,

          Respondent-Appellee.


                            ORDER AND JUDGMENT **


Before TACHA, TYMKOVICH, and GORSUCH, Circuit Judges.


      Francisco Torres-Villa is an inmate at the Federal Prison Camp in Florence,

Colorado. He brought a pro se petition for a writ of habeas corpus pursuant to 28

U.S.C. § 2241, alleging that Bureau of Prisons (BOP) officials at Florence Prison

Camp violated federal law by denying transfers for inmates like himself to lower-


      *
        Pursuant to Fed. R. App. P. 43(c)(2), Blake Davis is substituted for Ron
Wiley as the appellee in this action.
      **
          After examining appellant’s brief and the 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) and 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order and judgment is not binding precedent except under the doctrines of law of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.
security facilities. The district court dismissed Mr. Torres-Villa’s petition for

failure to exhaust administrative remedies. We agree with the district court and

affirm.

                                   *      *       *

      Mr. Torres-Villa’s habeas petition claimed that BOP officials have violated

18 U.S.C. § 3621(b), by categorically denying non-prerelease inmates (that is,

prisoners with more than twelve months remaining on their sentences), including

himself, transfers to Community Correction Centers (CCCs). It also alleged that

BOP officials have categorically denied prerelease inmates (those with less than

twelve months’ time remaining on their sentences) more than six months in

Residential Re-Entry Centers (RRCs), in violation of 18 U.S.C. § 3624(c) and 28

C.F.R. §§ 570.20 and 570.21.

      The government requested that the court dismiss Mr. Torres-Villa’s petition

on the ground that he had failed to exhaust available administrative remedies,

which is a prerequisite for a prisoner filing a habeas petition in federal court. See

Williams v. O’Brien, 792 F.2d 986, 987 (10th Cir. 1986) (per curiam). In

response, Mr. Torres-Villa admitted that he hadn’t exhausted the BOP’s

administrative procedures for review of prisoner complaints, see 28 C.F.R.

§§ 542.10–542.19, but argued that he shouldn’t be required to do so because

doing so would be futile, see Wilson v. Jones, 430 F.3d 1113, 1118 (10th Cir.




                                         -2-
2005). The district court rejected this argument and dismissed the petition. Mr.

Torres-Villa then brought this appeal.

      We agree with the district court that Mr. Torres-Villa was obligated to

exhaust administrative remedies before bringing his case to court. Although his

appellate brief argues only that exhaustion shouldn’t be required because he seeks

to challenge the validity — not the application — of BOP regulations, we

construe his pro se filings liberally and also consider the futility arguments he

made to the district court. Ultimately, however, none is availing.

      Mr. Torres-Villa’s original petition to the district court alleged that

exhausting administrative remedies would be futile because the BOP “has pre-

determined the issues before them.” Application for Writ of Habeas Corpus at 2,

R. at 5. In support of this argument, he referred to two memoranda concerning

how the BOP processes prisoner requests for transfers to lower-security

correctional facilities. The first memorandum deals with transfers of non-

prerelease prisoners to CCCs, and makes clear that prisoners are legally eligible

for such transfers at any time during their sentences and that all transfer requests

must receive individualized consideration. The second memorandum relates to

transfers of prerelease prisoners to RRCs. It notes that prisoners are legally

eligible for up to twelve months at RRCs, but that, as a general rule, six months

are usually sufficient to meet a prisoner’s needs. The district court correctly held

that neither memorandum reflects a predetermination of prisoner transfer

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requests. Were Mr. Torres-Villa to request a non-prerelease transfer to a CCC,

the first memorandum would require the BOP to give his request individualized

consideration; were he to request a prerelease transfer to a RRC, the second

memorandum wouldn’t prevent him from spending twelve months there. Because

it is possible for Mr. Torres-Villa to receive the relief he seeks from us through

BOP review procedures, we cannot say that requiring him to exhaust that avenue

would be an exercise in futility.

      Mr. Torres-Villa also argued to the district court that exhaustion would be

futile because the BOP is following regulations that this court previously declared

invalid in Wedelstedt v. Wiley, 477 F.3d 1160 (10th Cir. 2007). The district court

properly rejected this argument, as the BOP has adopted new regulations to

replace those we invalidated in Wedelstedt. Mr. Torres-Villa’s challenge here is

to the BOP’s new regulations, as embodied in the two memoranda, which another

panel of this court has upheld against a similar challenge. See Bun v. Wiley, 2009

WL 3437831 (10th Cir. Oct. 27, 2009) (unpublished).

      To the extent that Mr. Torres-Villa’s futility argument is that Florence

Prison Camp officials — as opposed to the BOP generally — are categorically

denying prisoner transfer requests, it must also fail. As the district court noted,

the four-tiered BOP review process provides for appeals to regional and national

BOP offices. Even assuming local prison officials have predetermined how they

will handle transfer requests, the further levels of review available to Mr. Torres-

                                         -4-
Villa could still afford him the relief he seeks, and thus wouldn’t render

exhaustion futile.

      Finally, as we have already noted, Mr. Torres-Villa argues before us that

exhaustion of administrative remedies isn’t necessary when a prisoner seeks to

challenge the validity, rather than the application, of BOP regulations. In support

of this argument, he cites Woodall v. Federal Bureau of Prisons, 432 F.3d 235,

239 n.2 (3d Cir. 2005), and Wedelstedt v. Wiley, 2006 WL 2475268 (D. Colo.

Aug. 24, 2006), both of which excused failure to exhaust before holding the

challenged regulations invalid. But a prisoner can’t do away with the exhaustion

requirement simply by framing his habeas petition as an attack on a regulation’s

validity rather than its application. The relevant question remains whether it

would be futile to require the prisoner to go through the BOP review process.

Undoubtedly it would have been in Woodall and Wedelstedt, where the challenged

regulations definitively barred the BOP from granting the requested transfers.

Here, however, the regulations Mr. Torres-Villa is challenging don’t definitively

prevent the BOP from transferring him to a CCC while he is a non-prerelease

inmate or from placing him in a RRC for the twelve months preceding his release.

Indeed, the memoranda he calls to our attention make clear that each is a possible

outcome of the BOP review process. Mr. Torres-Villa was thus obligated to go

through that process before filing his habeas petition in federal court.




                                         -5-
      Because Mr. Torres-Villa hasn’t shown that exhaustion of administrative

remedies would be futile, we affirm the district court’s dismissal of his petition

for a writ of habeas corpus. We grant Mr. Torres-Villa’s motion to proceed in

forma pauperis, and remind him of his obligation to continue making partial

payments until the entire filing fee for this appeal is paid. See 28 U.S.C.

§ 1915(a)-(b).

                                       ENTERED FOR THE COURT



                                       Neil M. Gorsuch
                                       Circuit Judge




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