1996 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

10-22-1996

Moscato v. Fed Bureau Prisons

Precedential or Non-Precedential:

Docket 95-7065

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Recommended Citation

"Moscato v. Fed Bureau Prisons" (1996). 1996 Decisions. Paper 60.

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 UNITED 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 Pennsylvania 

 D.C. Civ. No. 94-cv-00551 

 

 Argued July 26, 1996 

Before: BECKER, STAPLETON, and MICHEL, Circuit Judges 

 (Opinion Filed October 22, l996) 

 

 Howard J. Bashman (ARGUED) 

 Montgomery, McCracken, 

 Walker & Rhoads 

 Three Parkway - 20th Floor 

 Philadelphia, PA 19102 

 Attorney For Appellant 

 David M. Barasch 

 United States Attorney 
 Larry B. Selkowitz 

 Assistant U.S. Attorney 

 228 Walnut Street 

 P.O. Box 11754 

 Harrisburg, PA 17108 

 Henry J. Sadowski (ARGUED) 

 Deputy Regional Counsel 

 Federal Bureau of Prisons 

 Northeast Regional Office 

 U.S. Customs House - 7th Floor 

 2nd and Chestnut Streets 

 Philadelphia, PA 19106 

 Attorneys For Appellees 

 

 OPINION OF THE COURT 

 

BECKER, Circuit Judge. 

 Phillip Moscato, a federal prison inmate, filed 

this petition for habeas corpus relief in federal district court 

challenging the constitutionality of an institutional 

disciplinary hearing that resulted in certain adverse findings 

and the loss of his good-time credits. Before reaching the 

district court, Moscato pursued his administrative remedies, but 

was barred from proceeding to the final level of administrative 

review because of his failure to file a timely appeal. This 

appeal requires us to determine what effect such a procedural 

default has upon a federal prisoner's request for habeas corpus 

relief under 28 U.S.C. § 2241. We hold that a prisoner's 

procedural default of his administrative remedies bars judicial 

review of his habeas petition unless he can show cause for the 

default and prejudice attributable thereto. Because Moscato 

committed a procedural default of his administrative remedies by 

filing an untimely appeal and because he cannot show cause for 

the default, we are barred from review of the merits 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 Allenwood 

Federal Prison Camp was subjected to a shakedown. According to 

Moscato, when he returned to his living area, he discovered 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 night, Moscato 

was removed from the Federal Prison Camp and transported a few 
miles away to administrative segregation at Low Security 

Correctional Institution ("LSCI") Allenwood. 

 On May 4, 1993, Moscato received a disciplinary hearing 

at LSCI Allenwood. Prior to the hearing, he requested 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, were 

unavailable for testimony. In lieu of the inmates' oral 

testimony, the prison solicited from them brief statements 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 correctional 

officers who were present at the time of the incident. No other 

witnesses appeared for either side. 

 After reviewing all of the evidence, the hearing 

officer found Moscato guilty of Attempting to Engage in or 

Encouraging Others in a Group Demonstration, see 28 C.F.R. § 

541.13(b) - Table 3 (Code 212A), rather than the substantive act 

itself. According to the disciplinary hearing report, the 

sanctions imposed included: (a) disciplinary confinement; (b) 

forfeiture of 45 days statutory good time; (c) withholding of 10 

days statutory good time; and (d) termination of eligibility for 

camp good time effective April 8, 1993. The hearing officer also 

recommended that Moscato receive a disciplinary transfer. Prior 

to this incident, Moscato had 269 days of statutory good-time 

credit. 

 Moscato was informed of his right to appeal. 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 restoration of 

his good time credits and expungement of his incident report, and 

that, on June 29, 1993, the appeal was denied. Moscato attempted 

to appeal this decision to the Bureau's central office, the 

Office of General Counsel, but his appeal was not received until 

August 14, 1993, 16 days after the 30 day deadline. The General 

Counsel denied the appeal as untimely. Moscato submitted 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 forma 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 the evidence was 

insufficient to support the hearing officer's determination of 

misconduct. Moscato initially requested a rehearing of his 

disciplinary charge and restoration of his good-time credits. 

The U.S. Attorney opposed the petition on the merits but also 

argued that Moscato's untimely appeal to the General Counsel 

barred judicial review of his petition for relief. In reply, 

Moscato asked that the decision of the hearing officer be 

reversed and that the incident report be expunged from his prison 
record. 

 By consent of the parties, the case was submitted to a 

magistrate judge pursuant to 28 U.S.C. § 636(c). The 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 of written 

statements in lieu of live testimony where the witnesses are 

"unavailable." The magistrate judge reasoned that because 

Moscato's witnesses were not imprisoned with Moscato at LSCI 

Allenwood, they were unavailable, and thus use of their 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 evidence was 

sufficient to sustain a finding that Moscato had attempted to 

encourage a group demonstration. This timely appeal followed. 

 II. 

 Federal prisoners are ordinarily required to exhaust 

their administrative remedies before petitioning for a writ of 

habeas corpus pursuant to § 2241. Bradshaw v. Carlson, 682 F.2d 

1050, 1052 (3d Cir. 1981) (per curiam); United States v. Gabor, 

905 F.2d 76, 78 n.2 (5th Cir. 1990); Sanchez v. Miller, 792 F.2d 

694, 699 (7th Cir. 1986), cert. denied, 479 U.S. 1056 (1987). 

Here, however, we are presented with a situation where, because 

Moscato failed to timely file an appeal to the General 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 review of his § 

2241 petition. We believe that Moscato's failure to satisfy the 

procedural rules of the Bureau's administrative process 

constitutes a procedural default. Francis v. Rison, 894 F.2d 

353, 355 & n.2 (9th Cir. 1990); Sanchez, 792 F.2d at 697 (citingEngle v. 

Isaac, 456 U.S. 107, 124-25 & n.28 (1982)). We must 

therefore determine what the effect of such a default should be. 

 The Seventh Circuit, which is the one Court of Appeals 

to have considered this precise issue, has held that if a 

prisoner has failed to exhaust his administrative remedies due to 

a procedural default and the default renders unavailable the 

administrative process, review of his habeas claim is barred 

unless he can demonstrate cause and prejudice. Sanchez, 792 F.2d 

at 699. Because we believe that the preexisting law of 

procedural default and exhaustion of remedies renders the Seventh 

Circuit's decision inexorable, we endorse and adopt this holding. 

 The Supreme Court first articulated the cause and 

prejudice rule of procedural default in Davis v. United 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. The petitioner 

had failed to comply with Fed. R. Crim. P. 12, which required 

that a failure to object to the composition of a grand jury at 
trial constituted a waiver of the objection absent "for cause 

shown." The Supreme Court determined that review of the habeas 

petition was barred absent a showing of cause for the failure to 

comply with the procedural requirement and of actual 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 did not 

explicitly allow for an exception upon a showing for cause. SeeFrancis v. 

Henderson, 425 U.S. 536, 542 (1976) (cause and effect 

showing required to waive default of state procedural requirement 

that a challenge to grand jury composition be raised 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 habeas action 

involving Fed. R. Crim. P. 30, which contained no explicit 

exception to requirement for timely challenge to jury 

instructions); Neely v. Zimmerman, 858 F.2d 144, 145 (3rd Cir. 

1988) (failure to raise Massiah claim in post-verdict motion as 

required by state common law bars review of petitioner's habeas 

claim). 

 As the foregoing discussion indicates, a procedural 

default generally bars review of a federal habeas corpus petition 

absent a showing of cause and prejudice, "whether the default 

occurs in federal or state court, at trial or on appeal, and 

whether or not the procedural rule expressly incorporates a 

cause-and-prejudice standard." Sanchez, 792 F.2d 698. The courts 

enforce the cause and prejudice rule in part to conserve judicial 

resources by requiring state or federal prisoners who seek habeas 

relief to present their claims to the venue initially available. 

Id.; Engle, 456 U.S. at 126-29 (discussion of costs associated 

with habeas review). For federal prisoners challenging 

disciplinary proceedings, the initial venue is the administrative 

process. By applying the cause and prejudice rule to habeas 

review of administrative proceedings, we insure that prisoners do 

not circumvent the appropriate agencies and needlessly 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 disciplinary actions 

exhaust their administrative remedies are analogous to the 

reasons for requiring that they exhaust their judicial remedies 

before challenging their convictions; thus, the effect of a 

failure to exhaust in either context should be similar." 

Sanchez, 792 F.2d at 698. We require exhaustion for three 

reasons: (1) allowing the appropriate agency to develop a factual 

record and apply its expertise facilitates judicial review; (2) 

permitting agencies to grant the relief requested conserves 

judicial resources; and (3) providing agencies the opportunity to 

correct their own errors fosters administrative autonomy. 

Bradshaw, 682 F.2d at 1052; see also Schlesinger v. Councilman, 

420 U.S. 738, 756-57 (1975) (exhaustion avoids duplicative 
proceedings and insures that judicial review will be informed and 

narrowed); McKart v. United States, 395 U.S. 185, 195 (1969) 

(circumvention of administrative process diminishes effectiveness 

of an agency by encouraging prisoners to ignore its procedures). 

Requiring petitioners to satisfy the procedural requirements of 

the administrative remedy process promotes each of these goals. 

 In sum, we hold that a federal prisoner who challenges 

a disciplinary proceeding within a federal institution, fails to 

exhaust his administrative remedies because of a procedural 

default, and subsequently finds closed all additional avenues of 

administrative remedy, cannot secure judicial review of his 

habeas claim absent a showing of cause and prejudice. 

 III. 

 The district court did not rule on whether Moscato 

could excuse his procedural default. Although we could remand 

for further proceedings, when we reviewed the supplemental 

briefing on the issue of cause, we were struck by the lack of 

suggestion that anything other than Moscato's dilatoriness 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 is unnecessary 

because there is no factual dispute to resolve. Cf. Wainwright, 

433 U.S. at 91; Esslinger v. Davis, 44 F.3d 1515, 1528 n.45 (11th 

Cir. 1995); Sanchez, 792 F.2d at 699. Because Moscato cannot 

show cause, we need not address the question of actual prejudice. 

Caswell v. Ryan, 953 F.2d 853, 863 (3rd Cir.), cert. denied, 504 

U.S. 944 (1992). 

 Accordingly, because Moscato committed a procedural 

default of his administrative remedies, and because he cannot 

show cause for the default, his habeas petition filed pursuant to 

28 U.S.C. § 2241 is barred from review on the merits. The order 

of the magistrate judge dismissing the petition will therefore be 

affirmed.