                                                                          FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                  December 22, 2009
                                  TENTH CIRCUIT
                                                                  Elisabeth A. Shumaker
                                                                      Clerk of Court

 ANTHONY L. CIOCCHETTI,

          Petitioner-Appellant,

 v.                                                      No. 09-1336
                                              (D.C. No. 09-CV-01175-BNB-ZLW)
 RON WILEY, Warden, Federal Prison                         (D. Colo.)
 Camp - Florence,

          Respondent-Appellee.



                             ORDER AND JUDGMENT *


Before KELLY, BRISCOE, and HOLMES, Circuit Judges.



      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination

of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is,

therefore, submitted without oral argument.

      Anthony L. Ciocchetti, seeking to proceed in forma pauperis, filed a pro se


      *
        This order and judgment is not binding precedent, except under the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.
petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 in the United

States District Court for the District of Colorado. After ordering the government

to file a preliminary response limited to the issue of whether it intended to raise

the affirmative defense of exhaustion of remedies, the district court dismissed

Ciocchetti’s petition without prejudice on exhaustion grounds. On appeal,

Ciocchetti contends that the district court erred: (1) in requiring him to exhaust

his administrative remedies; and (2) in ordering the government to file a

preliminary response, rather than summarily dismissing his petition. Exercising

jurisdiction pursuant to 28 U.S.C. § 1291, we AFFIRM the district court’s

dismissal of Ciocchetti’s petition and DENY Ciocchetti’s Motion for Leave to

Proceed in forma pauperis.

                                           I

      Anthony L. Ciocchetti is presently incarcerated at the Federal Prison Camp

in Florence, Colorado (“FPC-Florence”) where he is serving a 65-month sentence

for Making Materially False Statements in Connection with a Bank Loan

Application and Bank Fraud, in violation of 18 U.S.C. §§ 1014 and 1344. His

projected release date, with good-time credit, is April 5, 2013.

      On May 22, 2009, Ciocchetti filed a pro se petition for a writ of habeas

corpus pursuant to 28 U.S.C. § 2241. Construing his petition liberally, Clark v.

Oklahoma, 468 F.3d 711, 713 n.1 (10th Cir. 2006) (“Pro se pleadings are liberally

construed.”), it appears that Ciocchetti alleges that the federal Bureau of Prisons

                                          2
(“BOP”), and in turn the staff of FPC-Florence, have violated federal law by

instituting regulations and policies which result in the categorical denial of

certain inmates’ requests to be transferred to Residential Reentry Centers

(“RRCs”) and/or Community Correctional Centers (“CCCs”).

      The BOP policies which Ciocchetti challenges are based on two federal

statutes: 18 U.S.C. §§ 3621(b) and 3624(c). Pursuant to 18 U.S.C. § 3621(b), the

BOP has the authority to designate where a federal inmate will be imprisoned and

to “direct the transfer of a prisoner from one penal or correctional facility to

another.” 18 U.S.C. § 3621(b). RRCs and CCCs are among the penal or

correctional facilities which the BOP may designate for inmate placement.

      In making any designation and/or transfer decisions pursuant to § 3621(b),

the BOP is instructed to consider the following five factors:

      (1) the resources of the facility contemplated;
      (2) the nature and circumstances of the offense;
      (3) the history and characteristics of the prisoner;
      (4) any statement by the court that imposed the sentence-
             (A) concerning the purposes for which the sentence to
             imprisonment was determined to be warranted; or
             (B) recommending a type of penal or correctional facility as
             appropriate; and
      (5) any pertinent policy statement issued by the Sentencing Commission
      pursuant to section 994(a)(2) of title 28.

Id.

      Also at issue in this case is the effect of 18 U.S.C. § 3624(c). This statute

governs “pre-release custody,” and directs the BOP to transfer inmates to RRCs


                                           3
or CCCs as they approach the end of their sentences in an effort to better prepare

the inmates for re-entry into the community. Prior to 2008, § 3624(c) limited the

time frame during which an inmate was eligible for pre-release custody in a RRC

or CCC to the final six months or ten percent of his or her sentence, whichever

was less. 18 U.S.C. § 3624(c) (West 2000), amended by Second Chance Act of

2007, Pub. L. No. 110-199, § 251, 122 Stat. 657, 692 (2008). This eligibility

period has, however, been expanded and now § 3624(c) provides in relevant part:

      The Director of the Bureau of Prisons shall, to the extent practicable,
      ensure that a prisoner serving a term of imprisonment spends a portion
      of the final months of that term (not to exceed 12 months), under
      conditions that will afford that prisoner a reasonable opportunity to
      adjust to and prepare for the reentry of that prisoner into the
      community. Such conditions may include a community correctional
      facility.

18 U.S.C. § 3624(c).

      The BOP has recently issued two memoranda providing guidance to its staff

regarding the proper implementation of these statutes and their corresponding

regulations. The first memorandum, issued on April 14, 2008, addresses the issue

of pre-release inmates. In relevant part, this memorandum: (1) recognizes that the

Second Chance Act of 2007 has increased the maximum available RRC or CCC

placement time for pre-release inmates to 12 months; (2) directs BOP staff to

review each pre-release inmate’s eligibility for RRC or CCC placement on an

individual basis seventeen to nineteen months before their projected release dates;

(3) instructs BOP staff that in conducting these individual reviews they are to

                                         4
consider the five-factor criteria set forth in § 3621(b); and (4) mentions that

“Bureau experience reflects inmates’ pre-release RRC needs can usually be

accommodated by a placement of six months or less” and that “[s]hould staff

determine an inmate’s pre-release RRC placement may require greater than six

months, the Warden must obtain the Regional Director’s written concurrence

before submitting the placement to the Community Corrections Manager.” ROA,

Vol. I., p. 39.

       The second BOP memorandum, issued November 14, 2008, addresses non-

pre-release inmates. As relevant here, this memorandum states that upon the

receipt of an inmate’s request to be transferred to an RRC or CCC before his pre-

release 12-month period, BOP staff must make an individualized determination of

the inmate’s eligibility for such a transfer based on the five factors set forth in §

3621(b). It also states that “[a]n RRC placement beyond six months should only

occur when there are unusual or extraordinary circumstances justifying such

placement, and the Regional Director concurs.” ROA, Vol. I., p. 35.

       In his § 2241 petition, Ciocchetti admitted that he had not exhausted his

administrative remedies by requesting a transfer to a RRC or CCC, but he argued

that based on the language of these memoranda, he should be excused from this

requirement. Specifically, Ciocchetti argued that it would be futile for him to

request a transfer to a RRC or CCC because the BOP memoranda indicate that

such a request would be categorically denied because Ciocchetti has more than six

                                           5
months remaining on his sentence.

      In light of Ciocchetti’s futility argument, the district court chose not to

summarily dismiss his petition for failure to exhaust his administrative remedies.

Instead, the court ordered the government to file a preliminary response to

Ciocchetti’s petition, limited to a discussion of whether it intended to raise

exhaustion as a defense. In its limited response, the government did assert the

exhaustion defense, thoroughly discussing the administrative remedies available

to Ciocchetti and the April 14, 2008 BOP memorandum. After Ciocchetti filed a

reply to the government’s response, the district court dismissed Ciocchetti’s

petition without prejudice for failure to exhaust his administrative remedies.

                                          II

      “We review the district court’s dismissal of a § 2241 habeas petition de

novo.” Broomes v. Ashcroft, 358 F.3d 1251, 1255 (10th Cir. 2004).

A.    Failure to Exhaust

      While § 2241 does not contain an express exhaustion requirement, we have

held that exhaustion of administrative remedies is considered a prerequisite to the

filing of a federal habeas corpus petition pursuant to this statute. See Williams v.

O’Brien, 792 F.2d 986, 987 (10th Cir. 1986) (per curiam). There are, however,

limited exceptions to the exhaustion requirement in the context of habeas

petitions, including a narrow futility exception which we have recognized in the

context of petitions brought under 28 U.S.C. § 2254, see Fairchild v. Workman,

                                          6
579 F.3d 1134, 1155 (10th Cir. 2009), and other circuits have recognized in the

context of petitions brought under §2241, see, e.g., Fazzini v. Northeast Ohio

Corr. Ctr., 473 F.3d 229, 236 (6th Cir. 2006).

      On appeal, Ciocchetti reasserts his contention that he should be excused

from exhaustion based on this futility exception. Specifically, Ciocchetti again

refers to the April 14, 2008, and November 14, 2008, BOP memoranda as well as

to anecdotal evidence of the FPC-Florence staff’s actions in arguing that it would

be futile for him to request a transfer to a RRC or CCC because such a request

would be categorically denied. Unfortunately for Ciocchetti, there is nothing in

the record to support his anecdotal claims and he clearly misreads the BOP

memoranda and the regulations they explain.

      As its memoranda clearly indicate, the BOP recognizes its authority to

place inmates in RRCs and/or CCCs for periods of time exceeding six months;

instructing BOP staff to individually consider each request for a transfer based on

the factors set forth in § 3621(b) regardless of the time remaining on the

requesting inmate’s sentence. Further, the fact that the regional BOP director

must approve any inmate’s assignment to a RRC or CCC which is greater than six

months in duration, is of no consequence because this requirement in no way

demonstrates a policy of categorical denial. In sum, Ciocchetti has failed to

provide any evidence to support his argument that his failure to exhaust his

administrative remedies should be excused as futile. As such, the district court

                                          7
properly dismissed Ciocchetti’s § 2241 petition.

B.    Order to File a Preliminary Response

        Ciocchetti’s second argument on appeal is that if exhaustion of

administrative remedies was required, the district court erred in ordering the

government to file a preliminary response rather than simply dismissing his

petition. According to Ciocchetti, this decision impermissibly delayed his habeas

proceedings.

      “District courts generally are afforded great discretion regarding trial

procedure applications (including control of the docket and parties), and their

decisions are reviewed only for abuse of discretion.” United States v. Nicholson,

983 F.2d 983, 988 (10th Cir. 1993) (citations and quotations omitted). Rule 4 of

the Rules Governing Section 2254 Cases in the United States District Courts is

illustrative of this discretion. It states that in a § 2254 case:

      The clerk must promptly forward the petition to a judge under the
      court’s assignment procedure, and the judge must promptly examine it.
      If it plainly appears from the petition and any attached exhibits that the
      petitioner is not entitled to relief in the district court, the judge must
      dismiss the petition and direct the clerk to notify the petitioner. If the
      petition is not dismissed, the judge must order the respondent to file an
      answer, motion or other response within a fixed time or take other
      action the judge may order.

Fed. R. Governing Section 2254 Cases in the United States District Courts 4.

      We assume that district courts are afforded similar discretion with respect

to § 2241 petitions, and therefore we conclude that the district court did not abuse


                                            8
its discretion by ordering the government to file a limited response to Ciocchetti’s

petition. The district court had Ciocchetti’s futility claims before it and by

seeking a response, the court afforded the government the opportunity to address

these arguments. For the sake of judicial efficiency, the court limited the

response to the exhaustion issue.

                                         III

      For the reasons stated above, we AFFIRM the district court’s dismissal of

Ciocchetti’s § 2241 habeas petition and DENY Ciocchetti’s Motion for Leave to

Proceed in forma pauperis.



                                               Entered for the Court


                                               Mary Beck Briscoe
                                               Circuit Judge




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