FILED 

U.S. COURT OF APPEALS

 ELEVENTH CIRCUIT 

 February 2, 2006 

 THOMAS K. KAHN 

 CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 05-14349

Non-Argument Calendar

________________________

D. C. Docket No. 04-00300-CV-LSC-S

JEFFERY B. HICKS, 

Petitioner-Appellant, 

versus 

MARTHA L. JORDAN, 

Respondent-Appellee. 

________________________

Appeal from the United States District Court

for the Northern District of Alabama

_________________________

(February 2, 2006)

Before BLACK, BARKETT and WILSON, Circuit Judges.

PER CURIAM:

Jeffery B. Hicks, a pro se federal prisoner, appeals the district court’s
2

dismissal of his petition for writ of habeas corpus, which was filed pursuant to 28

U.S.C. § 2241. Hicks’s petition was dismissed because he failed to exhaust his

administrative remedies, and alternatively, on the merits. On appeal, Hicks argues

that the Government waived any failure to exhaust administrative remedies

because the Government addressed the substance of Hicks’s claims in its

arguments. Hicks also contends that because he wrote several letters to the Bureau

of Prisons (“BOP”) regarding his nunc pro tunc claim for a time credit–and was

advised to seek relief in federal court–exhaustion of administrative remedies would

have been futile. 

Where a petition for writ of habeas corpus is brought pursuant to 28 U.S.C.

§ 2241, the exhaustion of administrative remedies is jurisdictional. See Winck v.

England, 327 F.3d 1296, 1300 n.1 (11th Cir. 2003); Gonzalez v. United States, 959

F.2d 211, 212 (11th Cir. 1992) (per curiam). We must resolve jurisdictional issues

before we address the merits of any underlying claims. See Steel Co. v. Citizens

for a Better Env’t, 523 U.S. 83, 93-102, 118 S. Ct. 1003, 1012-16, 140 L. Ed. 2d

210 (1998). A ruling on subject matter jurisdiction is reviewed de novo, as is a

denial of habeas relief under § 2241. See MacGinnitie v. Hobbs Group, LLC, 420

F.3d 1234, 1239 (11th Cir. 2005); Skinner v. Wiley, 355 F.3d 1293, 1294 (11th

Cir.) (per curiam), cert. denied, 541 U.S. 1036, 124 S. Ct. 2112, 158 L. Ed. 2d 722
 Although the regulations have been revised since Lucas, we do not believe these 1

revisions render Lucas’s description of the BOP regulatory scheme any less accurate. See, e.g.,

Administrative Remedy Program, 59 Fed. Reg. 50,179 (Oct. 3, 1994) (proposed rule); 61 Fed.

Reg. 86 (Jan. 2, 1996) (final rule) (codified at 28 C.F.R. pt. 542).

3

(2004).

The Attorney General has the authority to determine what credit, if any, is

due a prisoner for time served, and the Attorney General has delegated the right to

make this determination to the BOP. See Rodriguez v. Lamer, 60 F.3d 745, 747

(11th Cir. 1995); United States v. Lucas, 898 F.2d 1554, 1555-56 (11th Cir. 1990)

(per curiam). A prisoner seeking credit against his sentence for time in custody

must exhaust BOP administrative remedies, or else the district court has no

jurisdiction to hear his claims. Lucas, 898 F.2d at 1556. The BOP has established

regulations governing formal review of inmate complaints relating to any aspect of

imprisonment. See id.; 28 C.F.R. §§ 542.10-.19. These regulations “set out the

procedures that prisoners must pursue prior to seeking relief in a district court.” 

Lucas, 898 F.2d at 1556. The regulations include an appeals process that allows 1

the BOP’s General Counsel to make the ultimate decision. See 28 C.F.R.

§ 542.15(a).

Hicks does not dispute the Government’s claim that he failed to pursue fully

the regulatory scheme outlined above. Rather, he contends that (1) the

Government waived any failure to exhaust on his part by addressing the merits of
Lucas concluded that the exhaustion requirement in § 2241 cases was jurisdictional 2

after examining 18 U.S.C. § 3585 and its predecessor, 18 U.S.C § 3568. See 898 F.2d at 1554-

56. We have reasoned that “[a]lthough judicially developed exhaustion requirements might be

waived for discretionary reasons by courts, statutorily created exhaustion requirements bind the

parties and the courts.” Richardson v. Reno, 162 F.3d 1338, 1374 (11th Cir. 1998) (emphasis

added), judgment vacated on other grounds, 526 U.S. 1142, 119 S. Ct. 2016, 143 L. Ed. 2d 1029

(1999). Failure to comply with statutory exhaustion requirements deprives a court of

jurisdiction; thus “mandatory statutory exhaustion is not satisfied by a judicial conclusion that

the requirement need not apply due to futility.” Id.; cf. Gallo Cattle Co. v. United States Dep’t of

Agric., 159 F.3d 1194, 1197 (9th Cir. 1998) (“[W]hile judicially-created exhaustion

requirements may be waived by the courts for discretionary reasons, statutorily-provided

exhaustion requirements deprive the court of jurisdiction and, thus, preclude any exercise of

discretion by the court.”). But see Rodriguez, 60 F.3d at 747 (declining to address exhaustion in

§ 2241 context where Government did not raise issue of petitioner’s failure to exhaust).

4

his case, and (2) in any event, exhaustion would have been futile and was therefore

unnecessary. Given our precedent that the exhaustion requirement in § 2241 cases

such as Hicks’s is jurisdictional, whether he may even assert a waiver or futility

exception to the requirement is questionable. Assuming, without deciding, that 2

Hicks may indeed argue these exceptions, his arguments prove unavailing. The

Government did not waive the issue of administrative exhaustion by arguing

alternatively that Hicks’s claims failed on the merits. See Fed. R. Civ. P. 8(e)

(permitting the assertion of alternative and even inconsistent defenses). 

With respect to futility, Hicks notes that he sent several letters concerning

his nunc pro tunc requests to a BOP official, a Regional Inmate Systems

Administrator (“RISA”). According to Hicks, the RISA explained that the BOP

could not grant the relief Hicks sought, and indicated that Hicks would have to go

federal court for such relief. We are not persuaded that Hicks’s correspondence
 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we

3

adopting as binding precedent all decisions of the former Fifth Circuit handed down prior to the

close of business on September 30, 1981. 

5

with the RISA about Hicks’s nunc pro tunc requests demonstrates that full use of

the administrative remedies available to Hicks would have been futile. The

regulatory scheme includes a process for appeal to the Regional Director, and

ultimately, the General Counsel. See 28 C.F.R. § 542.15(a). It is not clear that use

of this process would have been meaningless. Cf. Alexander v. Hawk, 159 F.3d

1321, 1327 (11th Cir. 1998) (describing, in context of the Prison Litigation Reform

Act, numerous policy reasons favoring exhaustion, including the avoidance of

premature interruptions in the administrative process and allowing an agency to

discover and correct its own errors). Indeed, compliance with BOP procedures

helps ensure that, prior to judicial review, the BOP takes a coherent, definitive

position on the merits of a petitioner’s complaint. Cf. Von Hoffburg v. Alexander,

615 F.2d 633, 639 (5th Cir. 1980) (explaining that if the outcome of administrative

proceedings is adverse to the plaintiff, “the court will at least have a definitive

interpretation of the regulation and an explication of the relevant facts from the

highest administrative body” in an entity’s internal appellate system). The district 3

court properly dismissed Hicks’s petition for lack of subject matter jurisdiction.

AFFIRMED.