                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-12-2007

Warwick v. Miner
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-2364




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"Warwick v. Miner" (2007). 2007 Decisions. Paper 80.
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BLD-35                                                       NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                     No. 07-2364
                                     ___________

                                  SELWIN WARWICK,

                                           Appellant

                                            v.

                                JONATHAN C. MINER,
                                     Warden
                      ____________________________________

                   On Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                              (D.C. Civil No. 06-cv-02459)
                   District Judge: Honorable Christopher C. Conner
                     ____________________________________

         Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)
         or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                   October 25, 2007

                   Before: McKee, Rendell and Smith, Circuit Judges

                          (Opinion filed: December 12, 2007 )
                                       _________

                                        OPINION
                                       _________

PER CURIAM

      Selwin Warwick, a federal prisoner, filed a petition pursuant to 28 U.S.C. § 2241,

challenging how the Bureau of Prisons calculated his sentence when it revoked his parole.
The District Court dismissed the petition for failure to exhaust administrative remedies.

Warwick appeals. The Government submits a motion for summary affirmance.

       We grant the Government’s motion, and we will summarily affirm the District

Court because no substantial issue is presented on appeal. See L.A.R. 27.4; I.O.P. 10.6.

       Ordinarily, federal prisoners must exhaust available administrative remedies before

filing a petition under 28 U.S.C. § 2241. See Moscato v. Fed. Bureau of Prisons, 98 F.3d

757, 760 (3d Cir. 1996). Warwick admitted, Petition 3-4, and the Government showed,

Response to Petition, Ex. 2 37-39, that he never exhausted his administrative remedies.

       Furthermore, the District Court properly rejected Warwick’s claims that he was

entitled to be excused from the exhaustion requirement. Warwick argued that the

administrative review process was inordinately long. He based his claim on the length of

time (approximately one month instead of the expected five days) it took for the prison to

process an informal resolution that he had filed. However, Warwick need not have

waited for a slow response beyond the allotted time periods. An inmate who does not

receive a timely response may consider the absence of a decision a denial and take an

appeal to the next highest level. See 28 C.F.R. §§ 542.15 & 542.18. Furthermore,

Warwick had another avenue to challenge the revocation – an appeal to the National

Appeals Board. See id. at § 2.26. The National Appeals Board would have been required

to act within 60 days of the receipt of a challenge. See id. at § 2.26(c).

       Warwick also made the bald claim that the administrative remedies “fail to afford a

full and fair adjudication of the federal contentions raised.” Petition 4. However, the

                                              2
challenge to the calculation of his term is within the scope of matters that can be

adjudicated in the Administrative Remedy Program or through the National Appeals

Board. See 28 C.F.R §§ 542.10 & 2.26. Certainly, others have used the administrative

processes to challenge parole decisions. See, e.g., United States ex rel. Farese v. Luther,

953 F.2d 49, 50 (3d Cir. 1992).

       Lastly, Warwick contended that his advanced age and his wife’s declining health

together constituted an “exceptional circumstance of peculiar urgency.” Although, in rare

cases of peculiar urgency, a federal court may issue a writ of habeas corpus before a

petitioner exhausts state remedies, see, e.g., United States ex rel. Kennedy v. Tyler, 269

U.S. 13, 18-19 (1925), Warwick’s situation is not analogous to the circumstances where

such extraordinary action has been warranted. Warwick’s is just a case of failure to

exhaust administrative remedies. And neither his age nor his wife’s health problems

account for Warwick’s inaction for the more than two years between the parole decision

and the filing of his § 2241 petition.

       In sum, the District Court properly dismissed Warwick’s petition for failure to

exhaust his administrative remedies. Accordingly, we grant the Government’s motion for

summary affirmance, and we will summarily affirm the District Court’s judgment
