NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________

No. 13-3875 ___________

JASON B. TIFFIN, Appellant

v.

USP – LEWISBURG WARDEN ____________________________________

On Appeal from the United States District Court for the Middle District of Pennsylvania (M.D. Pa. Civil Action No. 13-cv-00851) District Judge: Honorable William W. Caldwell ____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a) October 17, 2014

Before: FISHER, KRAUSE and VAN ANTWERPEN, Circuit Judges

(Opinion filed: October 31, 2014) ___________

OPINION* ___________

PER CURIAM

Jason Tiffin, a federal prisoner proceeding pro se, appeals an order of the United

States District Court for the Middle District of Pennsylvania dismissing his petition for *This disposition is not an opinion of the full court and pursuant to I.O.P. 5.7 does not constitute binding precedent. writ of habeas corpus pursuant to

. For the reasons that follow, we will

affirm the judgment of the District Court.

In November 2005, Tiffin was arrested in the State of Washington after police

pursued a car in which he was a passenger and found him wearing body armor and

possessing shot gun shells. While released on bond, Tiffin was found in possession of a

firearm. He was taken into custody and convicted in state court of bail jumping. In 2007,

Tiffin was convicted in federal court on charges of felon in possession of a firearm, felon

in possession of ammunition, and felon in possession of body armor arising from the

November 2005 incident. He was sentenced to ten years in prison. That same year,

Tiffin was released from state custody to serve his federal sentence.

In 2013, Tiffin filed a complaint in District Court seeking relief pursuant to

or Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics,

(1971). Tiffin challenged the computation of his sentence. He claimed that

his state and federal sentences should run concurrently, or that the state prison in which

he was confined should be designated for service of his federal sentence, as discussed in

Barden v. Keohane,

(3d Cir. 1990). Tiffin also sought credit for time

served at a Federal Detention Center. In response, the Government argued that the

District Court should dismiss Tiffin’s petition for failure to exhaust administrative

remedies or deny relief because his sentence has been calculated properly.

[Type here] The Magistrate Judge treated Tiffin’s filing as a § 2241 habeas petition and

concluded that he had failed to exhaust his available administrative remedies. The

District Court adopted the Magistrate Judge’s report and dismissed Tiffin’s habeas

petition. This appeal followed.

We have jurisdiction pursuant to

. We exercise plenary review of

the District Court’s legal conclusions and apply a clearly erroneous standard to its factual

findings. Cradle v. United States,

(3d Cir. 2002) (per curiam).

Tiffin’s claims are cognizable under § 2241. Barden,

. Federal

prisoners are required to exhaust their administrative remedies before filing a § 2241

habeas petition. Moscato v. Federal Bureau of Prisons, et al.,

(3d Cir.

1996). A failure to satisfy the procedural rules of the Bureau of Prisons’ administrative

process constitutes a procedural default.

If such a default renders the administrative

process unavailable, review of a habeas claim is barred absent a showing of cause and

prejudice.

.

The record reflects that the Bureau of Prisons has a three-step administrative

remedy procedure that applies after an unsuccessful informal attempt at resolving a

complaint. An inmate must submit an administrative remedy form to the prison Warden.

If the inmate is not satisfied with the Warden’s response, he may appeal to the Regional

Director. The inmate may then appeal to the Central Office of the Bureau of Prisons.

Each step must be completed within a prescribed time. See Resp. to Habeas Pet. at Ex. 1.

[Type here] Tiffin submitted an administrative remedy request seeking credit towards his

federal sentence for time served in state and federal custody. The Warden denied the

request because the credit Tiffin sought is barred by statute. The Warden, however,

noted that Tiffin’s request had been forwarded to the Designation and Sentence

Computation Center (“DSCC”) to consider whether the state prison in which he served

his sentence should be designated for service of his federal sentence. See Barden,

(holding prisoner was entitled to such review).

Tiffin appealed to the Regional Director, who responded that his file was

forwarded to the DSCC, that the results were still pending, and that he would be notified

when a determination had been made. Tiffin appealed to the Central Office of the Bureau

of Prisons, but on December 3, 2012, his appeal was rejected for failure to include a copy

of his institution administrative remedy request. Tiffin was afforded 15 days to resubmit

the appeal in proper form. Tiffin did not do so. Instead, he filed his habeas petition in

District Court.

As recognized by the District Court, Tiffin did not complete his final level appeal

and thus did not fully exhaust his administrative remedies. The 15-day period to

resubmit his appeal has long passed. Under Moscato, his failure to satisfy the Bureau of

Prison’s rules constitutes a procedural default, at least with respect to any claim that was

not forwarded to the DSCC for review.1

1 The record does not include a decision by the DSCC on Tiffin’s claim. The Government [Type here] Tiffin has not established cause excusing his procedural default. Tiffin argued

below that he did everything he could but he was precluded from fully exhausting his

remedies as a result of the prison staff’s failure to mail his documents. Tiffin submitted

documents reflecting that his second level appeal to the Regional Office was initially not

received. Tiffin’s Unit Manager, however, rectified the problem by asking that Tiffin be

allowed to proceed outside the applicable time frames and verifying that Tiffin gave staff

his appeal for mailing. Tiffin’s appeal to the Regional Office was considered. These

circumstances do not establish cause excusing the procedural default, which occurred at

the final level of review, not when Tiffin appealed to the Regional Office.

Tiffin further argued in District Court that his final level appeal “never made it,”

that a Unit Manager at USP-Coleman was supposed to “give [him] a memo to refile,” and

that he “fought for weeks and weeks to get this.” Traverse at 1. Tiffin stated that he was

then transferred to USP-Lewisburg, that he was unable to get his counselor there to

follow up with staff at USP-Coleman, and that, as a result, he filed his complaint in

District Court.

To the extent Tiffin contends that the Bureau of Prisons Central Office did not

receive his final level appeal, the record reflects that his appeal was received. Tiffin has

submitted the declaration of a DSCC employee providing that this is not a case where designation of concurrent service is warranted, but the status of the DSCC’s review is not clear. Tiffin also does not contend that he exhausted his remedies through review by the DSCC. His claim under Barden was thus properly dismissed for failure to exhaust, although the record does not reflect that he procedurally defaulted this claim. [Type here] not squarely addressed the evidence submitted by the Government showing that his final

level appeal was rejected for failure to include documents, other than stating that the

evidence is a lie. See Motion for Reconsideration at 1. Tiffin appears to fault the prison

for “blocking” him by failing to give him certain documents, but his assertions are not

specific and he has not shown that his failure to resubmit his appeal might have been

attributable to prison staff. Tiffin also argues on appeal that he “never heard back” after

he submitted his final level appeal, see Informal Brief at 2-3, but he appears to assert the

same with respect to his appeal to the Regional Office, and that assertion is belied by the

record. In short, Tiffin’s filings are insufficient to establish cause for his procedural

default.

Accordingly, we will affirm the judgment of the District Court.

[Type here]