Wade v. Perez
Wade v. Perez
Opinion of the Court
Kendra Wade appeals a district court order denying his motion to alter or amend the judgment dismissing his petition for a writ of habeas corpus filed under 28 U.S.C. § 2241. This case has been referred to a panel of the court pursuant to Rule 34(j)(1), Rules of the Sixth Circuit. Upon examination, this panel unanimously agrees that oral argument is not needed. Fed. R.App. P. 34(a).
Wade, a federal prisoner incarcerated at the Federal Correctional Institute in Ash-
In his timely appeal, Wade again argues that the DHO’s decision was not in accordance with the evidence.
We review a judgment dismissing a 28 U.S.C. § 2241 petition de novo. Bostic v. Carlson, 884 F.2d 1267, 1269 (9th Cir. 1989).
Upon review, we conclude that the district court properly dismissed Wade’s petition. A federal prisoner must first exhaust his available remedies before filing a 28 U.S.C. § 2241 petition for habeas corpus relief. Little v. Hopkins, 638 F.2d 953, 953-54 (6th Cir. 1981) (per curiam). Federal prisoners who procedurally default on their administrative claims must demonstrate cause and prejudice for the omission. See Moscato v. Fed. Bureau of Prisons, 98 F.3d 757, 760 (3d Cir. 1996); Sanchez v. Miller, 792 F.2d 694, 697-99 (7th Cir. 1986). Under the Bureau of Prison’s Administrative Remedy Program, the first level of appeal from a DHO decision is an appeal to the Regional Director. 28 C.F.R. § 542.14(d)(2). To appeal from a decision of the Regional Director, an inmate must appeal to the General Counsel within thirty calendar days of the date the Regional Director signed the response, absent a valid reason for delay. 28 C.F.R. § 542.15(a). Wade appealed his disciplinary conviction to the Regional Director on November 3, 1998, who denied it on December 16, 1998. The next entry in Wade’s administrative appeal record is dated January 11, 2000. Thus, he did not exhaust his administrative remedies by timely appealing the Regional Director’s decision.
We further conclude that Wade failed to demonstrate cause for his procedural default. In the district court, Wade argued that he did not receive the report from the second DHO hearing. The record refutes this claim. Wade’s November 3, 1998, appeal to the Regional Director referred to “the attached DHO Report” and took issue with specific findings by the DHO. Wade was not prevented from filing that appeal, and the Regional Director’s decision informed Wade of the need to appeal to the General Counsel within thirty days. Because Wade did not establish cause for failing to exhaust his administrative appeal, the district court properly dismissed the 28 U.S.C. § 2241 petition without reviewing the merits. See Moscato, 98 F.3d at 760.
Even if Wade had established cause for failing to exhaust his administrative appeal, he was not prejudiced because his underlying claim does not entitle him to relief. At the disciplinary hearing, Wade admitted to being in a scuffle but claimed he acted only in self-defense. One inmate corroborated Wade’s account, and two others testified that they saw Wade
For the foregoing reasons, we affirm the district court’s order. Rule 34(j)(2)(C), Rules of the Sixth Circuit.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.