* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3 

## F I L E D United States Court of Appeals Tenth Circuit 

### DEC 14 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

ERIC UZZIELITIES HOLMAN,

Petitioner - Appellant, No. 98-3124

v. (D. Kansas) J.W. BOOKER, Warden - USP, Leavenworth; UNITED STATES DEPARTMENT OF JUSTICE, their agencies, agents, officers and employees, Respondents - Appellees. (D.C. No. 97-CV-3358)

ORDER AND JUDGMENT *

Before ANDERSON , KELLY , and BRISCOE , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1.9. Th e case is therefore ordered submitted without oral argument.-2-

Eric U. Holman appeals from the district court’s di smissal, without prejudice, of his petition for a writ of habeas corpus, filed pursuant to 28 U.S.C. § 2241. The district court granted Holman’s petiti on to proceed in forma pauperis, but dismissed Holman’s petition for failu re to exhaust administrative remedies. We affirm.

BACKGROUND Holman has had extensive experience with the federa l court system. In 1990, he was arrested in Michigan and was charged w ith various drug- and weapons-related crimes. In 1991, a jury in the Eas tern District of Michigan convicted Holman of distribution of cocaine, in vio lation of 21 U.S.C. § 841; use of a firearm in a drug offense, in violation of 18 U.S.C. § 924(c); and of being a felon in possession of a firearm, in violation of 1 8 U.S.C. §§ 922(g)(1) and 924(a)(2). Holman was sentenced to a term of 101 m onths imprisonment, and his sentence was summarily affirmed on direct appeal. United States v. Holman , 963 F.2d 374, 1992 WL 107019 (6th Cir. May 19, 1992). Holman applied for, and was denied, certiorari before the Supreme Court. Holman v. United States , 506 U.S. 1035 (1992). In 1995, Holman filed a post-con viction motion to vacate, set aside, or correct his sentence, pursuant to 28 U.S. C. § 2255, in the Eastern District of Michigan. The district court denied th e motion, and the Sixth Circuit-3-

affirmed. Holman v. United States , 113 F.3d 1234, 1997 WL 215514 (6th Cir. Apr. 29, 1997). During the course of serving his sentence, Holman h as been incarcerated at several different correctional facilities. Apparen tly, he was a prisoner of the State of Michigan at some point, and, although the record is unclear as to dates and times of transfer, he has apparently been imprisone d at federal facilities in Pennsylvania, Georgia, Kansas, and Colorado. At ev ery step along his path through the prison system, Holman has filed some so rt of litigation against prison officials. While a prisoner of the State of Michig an, Holman filed a lawsuit in federal court in Michigan, pursuant to 42 U.S.C. § 1983, alleging that his civil rights had been violated by prison officials. This suit was dismissed by the district court; Holman then moved for relief from t he judgment under Fed. R. Civ. P. 60. The Sixth Circuit finally disposed of this litigation in 1993, affirming the dismissal and the denial of Rule 60 relief. Holman v. Haskell , 9 F.3d 107, 1993 WL 424848 (6th Cir. Oct. 19, 1993). While a prison er in Pennsylvania, Holman filed another lawsuit, the nature of which is uncle ar from the record, and which was dismissed by the federal district court. The T hird Circuit affirmed this dismissal in 1996. Holman v. Holland , 106 F.3d 385 (3d Cir. 1996). After his transfer to Leavenworth, Kansas, Holman filed two separate Bivens actions in federal court in Kansas, alleging constitutional vi olations by various prison1 We note that Holman was correct to file the instant§ 2241 petition in the

District of Kansas. This is because “[a] petition under 28 U.S.C. § 2241 attacks the execution of a sentence rather than its validity and must be filed in the district where the prisoner is confined.” Bradshaw v. Story , 86 F.3d 164, 166 (10th Cir. 1996). A § 2255 petition, on the other hand, which attacks the legality or validity of the petitioner’s detention, “must be filed in th e district that imposed the sentence.” Id. -4- officials. Holman v. Gorski , No. 97-3231-GTV (D. Kan. filed 1997); Holman v. U.S. Dept. of Justice , Nos. 97-3226-GTV and 97-3230-GTV (D. Kan. filed 1 997) (two consolidated cases). These Kansas cases have been dismissed for failure to exhaust administrative remedies. See R. Doc. 15, at 2 n.1. In his habeas petition filed in the district court below, Holman also stat ed that he was maintaining at least two other federal lawsuits, which apparently were filed in district courts within the Eleventh and Third Circuits. R. Doc. 1, at 8. The district court, in the case before us, stated that “Petitioner has generat ed a confusing maelstrom of litigation that benefits neither him nor the intere sts of justice.” R. Doc. 5, at 2. On top of all of these cases, Holman has brought th e instant action, a suit for habeas corpus relief pursuant to 28 U.S.C. § 2241. 1 To make matters even more confusing, Holman’s § 2241 petition did not ev en set forth his grounds for relief or the alleged factual bases underlying thos e grounds; he merely incorporated by reference the pleadings in the Kansas Bivens actions, which at that time had not yet been dismissed. As a result, the appellate record in this case contains only oblique references to Holman’s allegations, and does not contain2 The district court also noted that Holman’s practic e of “submit[ting]

pleadings captioned for filing in all of petitioner ’s actions before this court and another judge in this district” was an unhelpful pr actice which “makes each of petitioner’s cases more difficult to handle and dec ide.” R. Doc. 15, at 1-2. The district court “strongly discourage[d] this practic e.” Id. at 2. We agree with these -5- any direct statement of his allegations or the acco mpanying factual bases. The only clues contained in the record which point to t he substance of Holman’s allegations are a document from the Leavenworth war den denying various claims Holman had made, and a statement by the district co urt characterizing Holman’s claims. Holman’s complaints to the warden includeda request for kosher meals, a complaint that he had been denied access to legal materials, and a complaint regarding the computation of his sentence. In othe r documents filed with the district court, Holman again mentions the complaintregarding the computation of his sentence. In the words of the district court, Holman’s claims “generally distill to three components: he reiterates most or all of the claims asserted in all of his cases; he cites his on-going but unsuccessful attempts to follow the procedures for exhausting administrative remedies; and he argues e xhaustion should not be required under the circumstances where most or all of his legal materials have been taken.” R. Doc. 15, at 2. Construing Holman’ s pleadings liberally, as we must, see Haines v. Kerner , 404 U.S. 519, 520-21 (1972), it appears to us that the gravamen of Holman’s complaints in his § 2241 petit ion is that his sentence was incorrectly calculated. 2sentiments of the district court, and further advis e future litigants (a category of

persons which undoubtedly will include Holman) thatsuch a practice is, in the end, not helpful to their causes. -6- The district court, as stated, dismissed Holman’s p etition for failure to exhaust administrative remedies. Holman filed a mo tion for reconsideration, arguing that the administrative procedures are frus trating and futile. The district court denied Holman’s motion. On appeal, Holman again raises a futility-related a rgument, and in addition asserts that because the district court dismissed h is petition on exhaustion grounds sua sponte, without any exhaustion-based argument f rom the government, that the dismissal on exhaustion grounds was improper.

DISCUSSION Holman wisely does not contest the district court’s conclusion that he must first exhaust administrative remedies. Even though § 2241 does not contain an explicit exhaustion requirement, as § 2254 does, we have nonetheless stated that responsibility for the computation of the service o f a sentence is an administrative responsibility conferred upon the attorney general acting through the Bureau of Prisons. 18 U.S.C. § 3568. For this reason, and because the agency is in a superior position to inv estigate the facts, judicial intervention is usually deferred until administrati ve remedies have been exhausted.-7-

Williams v. O’Brien , 792 F.2d 986, 987 (10th Cir. 1986); see also Clemente v. Allen , 120 F.3d 703, 705 (7th Cir. 1997) (stating that “ we review a claim concerning the computation of a sentence only afteradministrative remedies have been exhausted”); cf. Kendrick v. Carlson , 995 F.2d 1440, 1447 (8th Cir. 1993) (making a similar holding). “The Bureau of Prisons has established an administrative procedure through which an inmate may seek review of complaints relating to any aspect of his imprisonment,” includ ing sentence computations. Williams , 792 F.2d at 987. These procedures are set forth in 28 C.F.R. §§ 542.10-.19 (1998). There is no evidence in the record that Holman pursued these administrative remedies, and Holman does not seem to argue that he took any administrative action. Rather, Holman appears to argue that he should be e xempted from the exhaustion requirement because it would be futile t o pursue such remedies, and because the government never argued exhaustion to t he district court. We address each of these arguments in turn. Holman is correct that a futility exception to the exhaustion requirement exists. We have applied the futility exception in habeas cases brought under § 2254, see Wallace v. Cody , 951 F.2d 1170, 1172 (10th Cir. 1991); Goodwin v. Oklahoma , 923 F.2d 156, 157-58 (10th Cir. 1991), and other circuits have applied the doctrine in habeas cases brought under § 2241, see Fraley v. United States-8-

Bureau of Prisons , 1 F.3d 924, 925 (9th Cir. 1993). However, the fu tility exception is quite narrow. We have applied it only where there is a recent, adverse determination disposing of the precise point raised by the petitioner seeking to apply the exhaustion requirement. See Wallace , 951 F.2d at 1172; Goodwin , 923 F.2d at 158. In Fraley , the Ninth Circuit case cited by Holman which applies the futility exception in a § 2241 ca se, the petitioner had already made one administrative appeal from the decision co mputing her sentence, and that appeal was denied based on a published Bureau of Prisons policy. Petitioner argued that it would be futile to mount further adm inistrative appeals, because they would almost certainly be denied based on the same published policy. Therefore, the court held that petitioner was excus ed, due to futility, from pursuing further administrative remedies, and proce eded to hear her case on the merits. Fraley , 1 F.3d at 925. Alternatively, the Supreme Court has approved of th e futility exception to the exhaustion requirement where further administrative appeals would be procedurally barred. Harris v. Reed , 489 U.S. 255, 263 n.9 (1989). Holman alleges neither that his administrative reme dies would be substantively precluded because of some binding adm inistrative precedent, nor that his administrative remedies would be procedura lly barred. Frankly, Holman’s futility arguments are not well-focused, and it is difficult to determine-9-

the exact factual grounds on which he is basing his arguments. As far as we can tell, Holman appears to allege that he is unable to exhaust his administrative remedies because prison officials, in alleged retal iation against him for filing lawsuits against them, took his legal materials and roughed him up. Holman provides no factual support for these claims. Even if we assumed that these allegations were true, which we do not, see Ruark v. Gunter , 958 F.2d 318, 319 (10th Cir. 1992) (stating that “naked allegations” devoid of factual support are not cognizable on federal habeas), that would still notbe sufficient to establish that Holman’s administrative appeals would be futile. H olman must be able to demonstrate that his administrative appeals would f ounder because of a procedural bar, or because of some binding adverse administrative precedent. This he cannot do, and therefore he cannot bring hi s claims within the futility exception. Holman next claims that his “failure to exhaust adm inistrative remedies does not preclude judicial review where the governm ent fails to raise an objection.” United States v. Woods , 888 F.2d 653, 654 (10th Cir. 1989). This is because, in cases where the government fails to rai se the exhaustion issue, the requirement may be considered waived. See Granberry v. Greer , 481 U.S. 129, 132-34 (1987). Here, however, the government did n ot fail to raise the exhaustion issue; rather, before the government hadeven answered Holman’s-10-

petition in this case, the district court, sua spon te, raised the exhaustion issue and dismissed Holman’s petition, without prejudice, bec ause of failure to exhaust. We have stated, in a habeas case, that “a court may raise the defense of nonexhaustion sua sponte .” Odum v. Boone , 62 F.3d 327, 332 n.2 (10th Cir. 1995); see also Magouirk v. Phillips , 144 F.3d 348, 357 (5th Cir. 1998) (stating that “there is no doubt that a federal court may ra ise sua sponte a petitioner’s failure to exhaust state law remedies”); Brown v. Toombs , 139 F.3d 1102, 1104 (6th Cir.) (stating that “[d]istrict courts should enforce the exhaustion requirement

sua sponte if not raised by the defendant”), cert. denied , 119 S. Ct. 88 (1998). In sum, Holman failed to pursue administrative reme dies that were open to him. Under the facts of this case, he cannot avail himself of the futility exception to the exhaustion requirement, and it is entirely p roper for a district court to raise exhaustion issue sua sponte. The district court’s dismissal of Holman’s petitionwithout prejudice is AFFIRMED, and Holman is advised that by continuing his course of baseless litigation, he risks the imposition of sanctions ei ther in the district court, the court of appeals, or both.
ENTERED FOR THE COURT

Stephen H. Anderson Circuit Judge