### 1996 D e c i sion s O p inion s of the U nit e d

S t a t e s C our t of Appe al s for the Thir d C ir c uit

10-22-1996 

# M o sc a t o v . F ed B ur e a u P r i sons

P r e c e de n t i al or N on-P r e c e de n t i al :

D ock e t 95-7065

F o l lo w thi s a nd a dd it ion al w ork s a t : h tt p://d i g it alc ommon s .l a w

. v i l l a no v a

. e du/thir dc ir c uit_1996

Thi s de c i sion i s br ou gh t t o y ou for f r e e a nd ope n a c c e s s b y the O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit a t V i l l a no v a

U niv e r sit y S choo l of L a

w Di g it al R e posit or y

. I t h as be e n a c c e pt e d for inclusion in 1996 D e c i sion s b y a n a uthor i z e d a dmini s tr a t or of V i l l a no v a

U niv e r sit y S choo l of L a

w Di g it al R e posit or y

. F or mor e infor m a t ion, p le as e c on t a ct Be n j a min

. C a rl s on@l a

w

. v i l l a no v a

. e du

. 

### R e c omme nde d C it a t ion

" M os ca t o v

. F e d B ur e a u P r i s on s " (1996). 1996 D e cisio n s

. P a pe r 60.
h tt p://d i g it alc ommon s .l a

w

. v i l l a no v a

. e du/thir dc ir c uit_1996/60UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

95-7065

PHILLIP B. MOSCATO #08126-050

v.

FEDERAL BUREAU OF PRISONS;

L.S.C.I. ALLENWOOD

Phillip B. Moscato,

Appellant.

On Appeal from the United States District Court For the Middle District of Pennsylvani a D.C. Civ. No. 94-cv-00551

Argued July 26, 1996

Before: BECKER, STAPLETON, and MICHEL, Circuit Jud ges

(Opinion Filed October 22, l996)

Howard J. Bashman (A RGUED) Montgomery, McCracke n, Walker & Rhoads Three Parkway - 20th Floor Philadelphia, PA 19 102

Attorney For Appella nt

David M. Barasch
United States Attorn eyLarry B. Selkowitz

Assistant U.S. Attor ney 228 Walnut Street

P.O. Box 11754 Harrisburg, PA 1710 8 Henry J. Sadowski (A RGUED) Deputy Regional Coun sel

Federal Bureau of Pr isons Northeast Regional O ffice

U.S. Customs House - 7th Floor
2nd and Chestnut Str eets Philadelphia, PA 19 106

Attorneys For Appell ees

OPINION OF THE COURT

BECKER, Circuit Judge.

Phillip Moscato, a federal prison inmate, filed this petition for habeas corpus relief in federal d istrict court challenging the constitutionality of an institution al disciplinary hearing that resulted in certain adver se findings and the loss of his good-time credits. Before reac hing the district court, Moscato pursued his administrative remedies, but was barred from proceeding to the final level of ad ministrative review because of his failure to file a timely appe al. This appeal requires us to determine what effect such a procedural default has upon a federal prisoner's request for h abeas corpus relief under 28 U.S.C. § 2241. We hold that a pris oner's procedural default of his administrative remedies b ars judicial review of his habeas petition unless he can show ca use for the default and prejudice attributable thereto. Becaus e Moscato committed a procedural default of his administrativ e remedies by filing an untimely appeal and because he cannot sho w cause for the default, we are barred from review of the merit s of his § 2241 petition. Accordingly, we affirm the district court's dismissal of Moscato's petition, although we do so on different grounds.

I. On April 8, 1993, Moscato's unit at the Al lenwood Federal Prison Camp was subjected to a shakedown. According to Moscato, when he returned to his living area, he di scovered that his possessions had been trampled and discarded on the floor. Moscato grew angry and, although the nature of his behavior remains in dispute, all parties agree that officers soon removed Moscato to the Lieutenant's office and charged him with Engaging in or Encouraging Others in a Group Demonstration. See 28 C.F.R. § 541.13 - Table 3 (Code 212) (1993). That same ni ght, Moscato was removed from the Federal Prison Camp and transp orted a fewmiles away to administrative segregation at Low Sec urity

Correctional Institution ("LSCI") Allenwood. On May 4, 1993, Moscato received a discipl inary hearing at LSCI Allenwood. Prior to the hearing, he reques ted that
Correctional Officer David Ortiz and three inmates be called as witnesses on his behalf. The disciplinary hearing officer refused to call any of Moscato's witnesses, stating that Ortiz was an adverse witness whose testimony was already before the hearing officer as part of the investigative report , and that the inmate witnesses, imprisoned at a different site, w ere unavailable for testimony. In lieu of the inmates' oral testimony, the prison solicited from them brief sta tements that supported Moscato's recollection of the incident. At the hearing, Moscato read a statement on his own behalf and denied engaging in or encouraging a group demonstration. The hearing
officer also reviewed statements from the five corr ectional officers who were present at the time of the incide nt. No other witnesses appeared for either side. After reviewing all of the evidence, the h earing officer found Moscato guilty of Attempting to Engag e in or Encouraging Others in a Group Demonstration, see 28 C.F.R. § 541.13(b) - Table 3 (Code 212A), rather than the su bstantive act itself. According to the disciplinary hearing repo rt, the sanctions imposed included: (a) disciplinary confin ement; (b) forfeiture of 45 days statutory good time; (c) with holding of 10 days statutory good time; and (d) termination of el igibility for camp good time effective April 8, 1993. The hearin g officer also recommended that Moscato receive a disciplinary tra nsfer. Prior to this incident, Moscato had 269 days of statutory good-time
credit. Moscato was informed of his right to appea l. It is not clear from the record whether he appealed first to the Warden. It is clear, however, that he filed a timely appeal to the Bureau of Prisons, Northeast Regional Director, seeking re storation of his good time credits and expungement of his incide nt report, and that, on June 29, 1993, the appeal was denied. Mos cato attempted to appeal this decision to the Bureau's central off ice, the Office of General Counsel, but his appeal was not r eceived until August 14, 1993, 16 days after the 30 day deadline. The General Counsel denied the appeal as untimely. Moscato sub mitted a second appeal to the General Counsel on October 12, 1993; it too was denied as untimely. On April 14, 1994, Moscato filed an in for ma pauperispetition requesting habeas corpus relief pursuant to 28 U.S. C. § 2241 on the grounds that the Bureau of Prisons had denied him due process at the disciplinary hearing and that th e evidence was insufficient to support the hearing officer's deter mination of misconduct. Moscato initially requested a rehearin g of his disciplinary charge and restoration of his good-tim e credits. The U.S. Attorney opposed the petition on the merit s but also argued that Moscato's untimely appeal to the Genera l Counsel barred judicial review of his petition for relief. In reply, Moscato asked that the decision of the hearing offi cer be reversed and that the incident report be expunged f rom his prisonrecord.

By consent of the parties, the case was su bmitted to a magistrate judge pursuant to 28 U.S.C. § 636(c). T he magistrate judge dismissed the petition on the merits without discussing whether the claims were barred due to a procedural default. In rendering this decision, the magistrate judge noted that Wolff v. McDonnell, 418 U.S. 539 (1974), permitted the use o f written statements in lieu of live testimony where the witn esses are "unavailable." The magistrate judge reasoned that because Moscato's witnesses were not imprisoned with Moscat o at LSCI Allenwood, they were unavailable, and thus use of t heir written statements was not in error. The magistrate judge also held that due process did not require the hearing officer to call Officer
Ortiz because Ortiz was an adverse witness who had submitted a memorandum describing the incident. See 28 C.F.R. § 541.17(c). Finally, the magistrate judge ruled that the eviden ce was sufficient to sustain a finding that Moscato had at tempted to encourage a group demonstration. This timely appe al followed.

II. Federal prisoners are ordinarily required to exhaust their administrative remedies before petitioning fo r a writ of habeas corpus pursuant to § 2241. Bradshaw v. Car lson, 682 F.2d 1050, 1052 (3d Cir. 1981) (per curiam); United Stat es v. Gabor, 905 F.2d 76, 78 n.2 (5th Cir. 1990); Sanchez v. Mil ler, 792 F.2d 694, 699 (7th Cir. 1986), cert. denied, 479 U.S. 10 56 (1987). Here, however, we are presented with a situation wh ere, because Moscato failed to timely file an appeal to the Gene ral Counsel, Moscato cannot complete the administrative process. The Bureau contends that, because Moscato's appeal was denied as untimely, he committed a procedural default that barred revie w of his § 2241 petition. We believe that Moscato's failure t o satisfy the procedural rules of the Bureau's administrative pro cess constitutes a procedural default. Francis v. Rison , 894 F.2d 353, 355 & n.2 (9th Cir. 1990); Sanchez, 792 F.2d a t 697 (citingEngle v. Isaac, 456 U.S. 107, 124-25 & n.28 (1982)). We mus t
therefore determine what the effect of such a defau lt should be. The Seventh Circuit, which is the one Cour t of Appeals to have considered this precise issue, has held tha t if a prisoner has failed to exhaust his administrative r emedies due to a procedural default and the default renders unavai lable the administrative process, review of his habeas claim is barred unless he can demonstrate cause and prejudice. San chez, 792 F.2d at 699. Because we believe that the preexisting la w of procedural default and exhaustion of remedies rende rs the Seventh Circuit's decision inexorable, we endorse and adopt this holding. The Supreme Court first articulated the ca use and prejudice rule of procedural default in Davis v. Un ited States, 411 U.S. 233 (1973). In Davis, a federal prisoner petitioning under § 2255 sought to challenge for the first time the composition of the grand jury that indicted him. T he petitioner had failed to comply with Fed. R. Crim. P. 12, whic h required that a failure to object to the composition of a gr and jury attrial constituted a waiver of the objection absent "for cause

shown." The Supreme Court determined that review o f the habeas petition was barred absent a showing of cause for t he failure to comply with the procedural requirement and of actua l prejudice resulting from the alleged constitutional violation . 411 U.S. at

243-45.
The Court later extended the rule of Davis to cases involving state and federal procedural rules that d id not explicitly allow for an exception upon a showing fo r cause. SeeFrancis v. Henderson, 425 U.S. 536, 542 (1976) (cause and effe ct showing required to waive default of state procedur al requirement that a challenge to grand jury composition be raise d before trial); Wainwright v. Sykes, 433 U.S. 85, 89 (1977) (federal habeas barred absent showing of cause and prejudice when prisoner waived, under state law, his objection to admission of his confession); United States v. Frady, 456 U.S. 152, 167-68 (1982) (applying cause and prejudice rule in a federal hab eas action involving Fed. R. Crim. P. 30, which contained no e xplicit exception to requirement for timely challenge to ju ry instructions); Neely v. Zimmerman, 858 F.2d 144, 14 5 (3rd Cir. 1988) (failure to raise Massiah claim in post-verdi ct motion as required by state common law bars review of petitio ner's habeas claim). As the foregoing discussion indicates, a p rocedural default generally bars review of a federal habeas c orpus petition absent a showing of cause and prejudice, "whether t he default occurs in federal or state court, at trial or on ap peal, and whether or not the procedural rule expressly incorp orates a cause-and-prejudice standard." Sanchez, 792 F.2d 69 8. The courts enforce the cause and prejudice rule in part to con serve judicial resources by requiring state or federal prisoners w ho seek habeas relief to present their claims to the venue initial ly available. Id.; Engle, 456 U.S. at 126-29 (discussion of costs associated with habeas review). For federal prisoners challen ging disciplinary proceedings, the initial venue is the administrative process. By applying the cause and prejudice rule to habeas review of administrative proceedings, we insure tha t prisoners do not circumvent the appropriate agencies and needles sly swamp the courts with petitions for relief. We also believe that a procedural default in the administrative process bars judicial review because "the reasons for requiring that prisoners challenging disciplina ry actions exhaust their administrative remedies are analogous to the reasons for requiring that they exhaust their judic ial remedies before challenging their convictions; thus, the eff ect of a
failure to exhaust in either context should be simi lar." Sanchez, 792 F.2d at 698. We require exhaustion fo r three reasons: (1) allowing the appropriate agency to dev elop a factual record and apply its expertise facilitates judicial review; (2) permitting agencies to grant the relief requested c onserves judicial resources; and (3) providing agencies the opportunity to
correct their own errors fosters administrative aut onomy. Bradshaw, 682 F.2d at 1052; see also Schlesinger v. Councilman, 420 U.S. 738, 756-57 (1975) (exhaustion avoids dupl icativeproceedings and insures that judicial review will b e informed and

narrowed); McKart v. United States, 395 U.S. 185, 1 95 (1969) (circumvention of administrative process diminishes effectiveness of an agency by encouraging prisoners to ignore its procedures). Requiring petitioners to satisfy the procedural req uirements of the administrative remedy process promotes each of these goals. In sum, we hold that a federal prisoner wh o challenges a disciplinary proceeding within a federal institut ion, fails to exhaust his administrative remedies because of a pr ocedural default, and subsequently finds closed all addition al avenues of administrative remedy, cannot secure judicial revie w of his habeas claim absent a showing of cause and prejudic e.

III.
The district court did not rule on whether Moscato could excuse his procedural default. Although we c ould remand for further proceedings, when we reviewed the suppl emental briefing on the issue of cause, we were struck by t he lack of suggestion that anything other than Moscato's dilat oriness caused the appeal to be filed late. Where, in the face of an explicit opportunity to do so, a petitioner fails to allege the existence of an external impediment, a remand for a hearing i s unnecessary because there is no factual dispute to resolve. Cf . Wainwright, 433 U.S. at 91; Esslinger v. Davis, 44 F.3d 1515, 1 528 n.45 (11th Cir. 1995); Sanchez, 792 F.2d at 699. Because Mosc ato cannot show cause, we need not address the question of act ual prejudice. Caswell v. Ryan, 953 F.2d 853, 863 (3rd Cir.), cert . denied, 504 U.S. 944 (1992). Accordingly, because Moscato committed a p rocedural default of his administrative remedies, and because he cannot show cause for the default, his habeas petition fil ed pursuant to
28 U.S.C. § 2241 is barred from review on the merit s. The order of the magistrate judge dismissing the petition wil l therefore be
affirmed.