United States District Court, W.D. Louisiana, Alexandria Division
RICHARD D. MENYWEATHER, Petitioner
REPORT AND RECOMMENDATION
H.L. Perez-Montes United States Magistrate Judge.
the Court is a petition for writ of habeas corpus (28 U.S.C.
§ 2241) filed by pro se Petitioner Richard D.
Menyweather (“Menyweather”) (#20504-078).
Menyweather is an inmate in the custody of the Federal Bureau
of Prisons (“BOP”), incarcerated at the United
States Penitentiary in Pollock, Louisiana. Menyweather
challenges the calculation of his sentence by the BOP.
matter has been referred to the undersigned for review,
report, and recommendation in accordance with the provisions
of 28 U.S.C. § 636 and the standing orders of the Court.
was convicted of possession of a firearm by a convicted
felon. United States v. Menyweather, 607 F.
App'x 424 (5th Cir. 2015). Menyweather was sentenced to
87 months of imprisonment. (4:12-cr-00233, E.D. Tex.).
claims he did not receive proper credit against his federal
sentence for time spent in federal custody.
Law and Analysis
federal prisoner must “exhaust his administrative
remedies before seeking habeas relief in federal court under
28 U.S.C. § 2241.” Fuller v. Rich, 11
F.3d 61, 62 (5th Cir. 1994); see also, United
States v. Gabor, 905 F.2d 76, 78 n.2 (5th Cir. 1990) (a
petitioner seeking habeas relief under Section 2241
“must first exhaust his administrative remedies through
the Bureau of Prisons”). In order to properly exhaust
administrative remedies under § 2241, a prisoner must
first make an informal resolution of his complaint by filing
a BP-8 form. 28 C.F.R. § 542.13(a). If informal attempts
are unsuccessful, the prisoner must submit a written
complaint to the warden using a BP-9 form. 28 C.F.R. §
542.14(a). If the prisoner is not satisfied with the
warden's response, he may appeal to the Regional Director
using a BP-10 form. 28 C.F.R. § 542.15. If still
unsatisfied, the prisoner may appeal to the Office of General
Counsel using a BP-11 form. 28 C.F.R. § 542.15.
prisoner believes he has been improperly refused credit
against his sentence, the prisoner must first seek
administrative review of the computations of credit. Once he
has exhausted administrative remedies, the prisoner may
pursue judicial review of the computations. See United
States v. Setser, 607 F.3d 128, 133 (5th Cir. 2010)
(citing United States v. Dowling, 962 F.2d 390, 393
(5th Cir. 1992)), aff'd, 132 S.Ct. 1463 (2011).
“Exceptions to the exhaustion requirement are
appropriate where the available administrative remedies
either are unavailable or wholly inappropriate to the relief
sought, or where the attempt to exhaust such remedies would
itself be a patently futile course of action.”
Fuller, 11 F.3d at 62 (citation omitted). Exceptions
to the exhaustion requirement apply only in
“extraordinary circumstances, ” and the
petitioner bears the burden of demonstrating the futility of
administrative review. Id.
original complaint, Menyweather alleges he sought relief from
the warden, and Menyweather provides a copy of the
warden's response denying relief. (Doc. 1, p. 17).
However, Menyweather did not allege or demonstrate that he
continued the administrative review process. Therefore,
Menyweather was ordered to amend his petition to state
whether he appealed the denial of relief and received the
Designation and Computation Center's determination
regarding his request for credit. (Doc. 6). Menyweather was
further ordered to provide copies of the responses received
at each level if he exhausted through the regional and
national levels, and to explain what, if any, extraordinary
circumstances prevented him from properly exhausting if he
failed to exhaust. (Doc. 6).
amended complaint, Menyweather does not allege that he
complied with the exhaustion requirement. (Doc. 7).
Menyweather only submits a copy of the warden's response,
which Menyweather labels “from Regional.” (Doc.
7, p. 3). Menyweather did not submit responses from the
regional and national levels. It appears that Menyweather did
not properly exhaust his claim, and he does not allege
foregoing reasons, IT IS RECOMMENDED that Menyweather's
petition for writ of habeas corpus (Doc. 1) be DENIED and
DISMISSED, without prejudice to seeking ...