UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ RONNIE BRUSCINO, Petitioner - Appellant,

v. TRUE, Acting Warden; UNITED STATES PAROLE COMMISSION, Respondents - Appellees. No. 17-1004 (D.C. No. 1:15- CV-02845-KMT) (D. Colo.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before MATHESON , McKAY , and MORITZ , Circuit Judges.

________________ _________________ Ronnie Bruscino, a federal prisoner a ppearing pro se, appeals the district court’s denial of his 28 U.S.C. § 2241 habeas corpus application. Exercising jurisdiction under 28 U.S. C. § 2253(a), we affirm.
I. B ACKGROUND Bruscino is serving an aggregate life se ntence in the United States Bureau of Prisons for offenses (counterfe iting, murder of an inmate, assault on a correctional

* After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not ma terially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### September 13, 2017
Elisabeth A. Shumaker Clerk of Court2 officer) committed between 1977 and 1982. The United States Parole Commission (USPC or Commission) denied parole in 1992 and ordered hi m continued to a 15-year reconsideration hearing. The Nati onal Appeals Board affirmed. In 2007, the Commission denied Bruscino’s pa role application and ordered him to continue to the expiration of his sentence. The Na tional Appeals Board again affirmed. The Commission conducted statutory inte rim hearings in October 2010, April 2013, and March 2015, but ordered no change in its previous determination that Bruscino must continue to the end of his sentence. Bruscino di dn’t appeal any of those decisions. In June 2015, Bruscino applied for a parole hearing on the September 2015 docket. The Commission set the hearing for July 2015 and asked him to sign a waiver of that hearing. Although Br uscino refused to sign, the Commission determined that he had waiv ed the July hearing and noted that he had requested a hearing on the September 2015 docket. The Commission attempted to conduct th e hearing on Septem ber 29, 2015, but Bruscino requested a postponement, claimi ng that he and his attorney received inadequate notice of the hearing date and th at they hadn’t received all the materials the Commission might use in its decision. After finding the notice adequate, the hearing examiner refused to postpone the hear ing. The examiner also indicated that she did not have a letter and exhibits that Bruscino claimed his attorney had submitted. Bruscino responded that “he was not waiving anything,” R. at 122 (internal quotation marks omitted), and that she could continue the hearing “without3 him,” R. at 11. He was then returned to hi s cell at his request. According to Bruscino, the last thing he heard the ex aminer say was that “the hearing would continue without him.” R. at 11–12. The examiner never issued a decision in connection with the September 2015 hearing. Instead, the examin er ruled that Bruscino’s refu sal to participate constituted a waiver of the hearing, and that if he wanted “to be reconsidered for mandatory parole,” he was required to “complete and submit a new parole application.” R. at
122 (internal quotation marks omitted). Th e examiner noted th at the letter and exhibits Bruscino had inquired about we re located in the Commission’s incoming mail and had been added to Bruscino’s “pack et for review at a future hearing.” Id. At some point, the Commission determ ined that Bruscino’s “two-thirds” date—the date on which he would become eligible for mandatory parole—was October 15, 2015. In relevant part, the “t wo-thirds” date occurs when a federal prisoner has served “thirty years of each consecutive term or terms of more than forty-five years including any life te rm.” 18 U.S.C. § 4206(d) (repealed). 1

1 Although repealed effective November 1, 1987, § 4206(d) remains applicable to sentences that were, like Bruscino’ s, imposed prior to that date. Warren v. Ashcroft , 119 F. App’x 239, 24 0 (10th Cir. 2004). In full, § 4206(d) reads: Any prisoner, serving a sentence of five years or longer, who is not earlier released under this section or any other applicable pr ovision of law, shall be released on parole after having served two-thirds of each consecutive term or terms, or after serving thirty years of each consecutive term or terms of more than forty-five year s including any life term, whichever is earlier: Provided, however, That the Commission shall not release such prisoner if it determines that he has seriously or frequently violated institution rules (continued)4 Bruscino applied for a new mandatory paro le hearing in December 2015. The Commission noticed the heari ng for “the next availabl e docket” in “March.” R. at 125 (capitalization and emphasis omitte d). That, apparently, was a mistake, because the Commission attempted to hold the hearing in early February 2016, allegedly after giving Bruscino only one day’s notice. Because of th e error in the notice, the examiner continue d the hearing to the next available docket, and it was ultimately scheduled for the week of September 19, 2016 because Bruscino “request[ed] to have represen tation present,” R. at 199. The record on appeal doesn’t indicate whether that hearing was ever held. Meanwhile, on December 30, 2015, Brus cino filed his pro se § 2241 habeas application. The district c ourt observed that instead of “present[ing] specific claims for relief,” the application r ead “as a narrative of [Brusci no’s] complaints against the Commission.” R. at 211–12. Nonethel ess, the court libe rally construed the application as containing th e following seven claims: 1. Applicant is being detained illegally because he was not released after serving two-thirds of his sentence; and, the Commission pre-determined the outcome of his mandatory parole hearing; 2. The USPC acted in an arbitrary a nd capricious manner at Applicant’s July 2015 and September 29, 2015 h earings by misrepresenting that he waived his hearing and in failing to pr ovide him with proper notice of the hearing;

and regulations or that there is a re asonable probability that he will commit any Federal, State, or local crime.5 3. The USPC acted in an arbitrary a nd capricious manner by not reducing Applicant’s sentence due to “exceptiona l circumstances” because he saved a correctional officer’s life; 4. The USPC acted in an arbitrary and capricious manner by failing to disclose to him a copy of a PSI repor t prepared in September 1980 that raises questions concerning Ap plicant’s murder conviction; 5. The USPC acted in an arbitrar y and capricious manner because Applicant did not apply for or receive notice that he would have a parole hearing in September 2007; 6. The USPC acted in an arbitrary and capricious manner by including inaccurate information in his progress re ports; and 7. The USPC improperly designated Applicant’s case as “original jurisdiction.”
R. at 212. In a November 2016 order, the district court denied relief. Bruscino appealed. According to Br uscino, in February 2017, while this appeal was pending, the Commission conducted his mandatory parole hearing and denied parole, and he currently has an appeal pending with the National Appeals Board. 2

2 To the extent Bruscino advances ar guments about errors related to the February 2017 hearing and the resulting deci sion, they are not properly before this court because that hearing post-dated the di strict court’s judgment, and the district court made no ruling as to that hearing. See Lyons v. Jeffe rson Bank & Tr. , 994 F.2d 716, 721 (10th Cir. 1993) (explaining that “an issue [must be] presented to, considered and decided by the tr ial court” before this court will consider it (alteration and internal quotation marks omitted)). Furt her, to seek judici al review of that decision, Bruscino must first exhaust admini strative remedies. See Burger v. Scott , 317 F.3d 1133, 1144 n.8 (10th Cir. 2003) (explaining that “claims raised in § 2241 petitions must be exhausted be fore a federal court will hear them”). He has not done so, indicating instead that his appeal is pending with the National Appeals Board.6 II. D ISCUSSION Our review of the district court’s denial of § 2241 relief is de novo, but like the district court, we employ a st andard that is deferential to the Commission’s decisions. Curtis v. Chester , 626 F.3d 540, 544 (10th Cir. 2010). Under that “limited” standard, we will not reverse a Commissi on decision “unless it is ar bitrary and capricious,” and our “inquiry is only whether there is a rational basis in th e record for the Commission’s conclusions embodied in its statement of reasons.” Id. (internal quotation marks omitted). “We do not reweigh evidence, make credibility determinations, or substitute our judgment for the Commission’s.” Gometz v. U.S. Parole Comm'n , 294 F.3d 1256, 1260 (10th Cir. 200 2). Because Bruscino is pro se, we liberally construe his filing but do not act as his advocate. Yang v. Archuleta , 525 F.3d 925, 927 n. 1 (10th Cir. 2008). Bruscino first argues that the Commission acted arbitrarily and capriciously or abused its authority by (1) a ttempting to coerce him into signing a waiver of the July 2015 hearing, (2) failing to provide him w ith adequate notice of the September 2015 hearing and refusing to postpone that hear ing, (3) failing to provide him with the materials it intended to use at either the July or September 2015 hearings at least 60 days prior to those hearings, and (4) concluding th at he waived the September 2015 hearing. We reject these arguments. First, Brusci no hasn’t established prejudice from the effort to have him waive th e July 2015 hearing because he asked for a hearing in September and was offered one. See Miller v. Fed. Bureau of Prisons , 989 F.2d 420, 423 (10th Cir. 1993) (due process violation requ ires prejudice). Nor has he established7 prejudice from the failure to provide him with adequate notice of the September hearing date or with the information the Commission intended to use at that hearing. A prisoner can waive adequate notice, but if he doesn’t , the remedy is to conduct the hearing at a later date. See 18 U.S.C. § 4208(b) (repeal ed effective Nov. 1, 1987); 3 28 C.F.R. § 2.55(a), (e). 4 Finally, the examiner’s determin ation that Bruscino’s refusal to participate in the hearing amounted to a waiv er was not arbitrary and capricious. Her decision comported with the Commission’s polic y that an examiner should consider a prisoner’s refusal to enter the hearing room as a waiver of parole an d complete a memo to

3 18 U.S.C. § 4208( b) provides: At least thirty days prior to any parole determination proceeding, the prisoner shall be provided with (1) written notice of the time and place of the proceeding, and (2) reasonable access to a report or other document to be used by the Commission in making its determination. A prisoner may waive such notice, except that if notice is not waiv ed the proceeding shall be held during the next regularly sc heduled proceedings by the Commission at the institution in whic h the prisoner is confined.
4 In relevant part, 28 C.F.R. § 2.55(a) provides: “At least 60 days prior to a hearing scheduled pursuant to 28 CFR 2.12 or 2.14 each prisoner shall be given notice of his right to request disclosure of the reports and other documents to be used by the Commission in making its determ ination.” And § 2.55(e) provides: Waiver of disclosure. When a timely request has been made for disclosure, if any document or summary of a document relevant to the parole determination has not been disclosed 30 days prior to the hearing, the prisoner shall be offered the opportun ity to waive disc losure of such document without prejudice to his right to later review the document or a summary of the document. The examin er panel may disclose the document and proceed with the hearing so long as the prisoner waives his right to advance disclosure. If the prisoner chooses not to waive prehearing disclosure, the examiner panel shall c ontinue the hearing to the next docket to permit disclosure. A continuance for disclosure should not be extended beyond the next hearing docket.8 that effect. See USPC’s Rules and Procedures Manua l § 2.11-02(b) (June 30, 2010) (“When a prisoner refuses to en ter the hearing room, physical force should not be used to ensure his appearance. Inst ead, an official of the ins titution should make a written statement that the prisoner was properly advised of his right to a hearing, but refused to make such appearance. The hearing examiner, in such cases, should consider that he has waived parole and ente r a memo for the file to that effect.”). Bruscino next complains about responses to his requests under the Freedom of Information Act (FOIA) for a recording of the Septembe r 2015 hearing. But he didn’t raise a FOIA claim in th e district court, and we w on’t consider claims raised for the first time on appeal. Davis v. Clifford , 825 F.3d 1131, 1137 n.3 (10th Cir. 2016). Further, a FOIA clai m is “not cognizable” in a request for habeas corpus relief. Moore v. Utah , 24 F. App’x 870, 87 1–72 (10th Cir. 2001). 5 Bruscino also summarily faults th e Commission for not complying with § 4206(d) and a relate d regulation, 28 C.F.R. § 2.53(a) . We interpret this as a renewed request for the primary relief he sought in his habeas petition—immediate release from confinement because prior to his two-thirds date the Commission hadn’t conducted the hearing or made the § 4206( d) finding required to forestall mandatory parole release (that “he has seriously or frequently violated institution rules and regulations or that there is a reasonable probability that he will commit any Federal, State, or local crime”). In other words, Bruscino cont ends that his release was

5 We cite to unpublished d ecisions only for their pers uasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.9 automatic once his two-thirds date had pa ssed and the Commission hadn’t made the § 4206(d) finding. Bruscino cites no authority for his proposition, and the scant case law addressing the issue sugges ts a contrary conclusion— that § 4206(d) creates a rebuttable presumption favor ing release on parole, subj ect to the Commission’s determination as to the statut ory factors precluding parole. See Del Raine v. Daniels , 462 F. App’x 793, 795 (10th Cir. 2012) (r eciting, with apparent approval, the National Appeals Board’s clarif ication that the arrival of a prisoner’s two-thirds date triggers only a “rebuttable statutory presumption in fa vor of release on parole”); Stanko v. Story , No. 90-6223, 1991 WL 42251, at *1 (6th Cir. Mar. 28, 1991) (unpublished) (concluding that under § 4206(d), a pr isoner only becomes “parole eligible” after serving “two-thirds of his sentence”). Thus, we conclude the Commission’s failure to conduct a hearing or make the § 4206(d) determination by Bruscino’s two-thirds date doesn’t entitl e him to his requested relief—immediate release from custody. Bruscino alleges there were several pr ocedural problems with his March 2015 interim hearing, but as appellees point out, and contrary to Brus cino’s contention, he affirmatively represented to the district court that he was “not challenging the outcome” of that hearing. R. at 152. That representation amounts to waiver, which is “the intentional relinqu ishment or abandonment of a known right,” and precludes appellate review. United States v. Teague , 443 F.3d 1310, 1314 (10th Cir. 2006) (internal quotation marks omitted). Further, Bruscino hasn’t challenged the district10 court’s conclusion that he didn’t exhaust administrativ e remedies regarding the March 2015 hearing, R. at 212 n.1. For th is alternative reason, we are barred from reviewing his habeas claim. See Burger v. Scott , 317 F.3d 1133, 1144 n.8 (10th Cir. 2003) (explaining that “claims raised in § 2241 petitions must be exhausted before a federal court will hear them”). Bruscino further claims that his 1995 transfer to the BOP’s Administrative Maximum Facility in Floren ce, Colorado was in retaliati on for his role in a class action lawsuit challenging conditions of conf inement at the federa l penitentiary in Marion, Illinois. This claim is not pr operly brought in a § 2241 habeas proceeding because it challenges the cond itions of his confinement rath er than the duration of his custody. See Palma-Salazar v. Davis , 677 F.3d 1031, 1035–3 6 (10th Cir. 2012) (construing claim concerning pr ison transfer as one not cognizable under § 2241). Moreover, Bruscino didn’t raise this issue in the district court and hasn’t complained that he was impeded from doing so. Conse quently, we won’t consider it on appeal. See United States v. Hernandez , 847 F.3d 1257, 1269 (10th Cir. 2017) (“We will not consider issues which are raised for the first time on appeal unless a party demonstrates an impediment which preven ted raising the argument below.” (internal quotation marks omitted)). Bruscino also faults the Commission for placing him on “origi nal jurisdiction” in 1992 and, without a quorum of six co mmissioners, ordering him continued to a fifteen-year reconsideration h earing in 2007. He claims this was prohibited by case law and that a 2003 parole date should have been reinstated . We fail to see what11 prejudice Bruscino suffered given that he was denied parole in 2007 and he has made no showing that the outcome would have b een different if he was considered for parole in 2003. See Del Raine , 462 F. App’x at 796 (concl uding that petitioner was not entitled to release or reduction in se ntence for Commission’s tardy provision of § 4206(d) hearing at whic h Commission denied parole and petitioner provided no reason why the Commission would have reached a more favorable determination if it had held a timely hearing).
III. C ONCLUSION The district court’s judgment is affirm ed. Bruscino’s application to proceed on appeal without prepayment of costs or fees is grante d. The relevant statute, 28 U.S.C. § 1915(a)(1), does not permit l itigants to avoid payment of filing and docketing fees, only prepayment of those fees. Though we have disposed of this matter on the merits, Bruscino remains obligat ed to pay all filing and docketing fees. He is directed to pay the fees in full to th e Clerk of the District Court for the District of Colorado.

Entered for the Court
Nancy L. Moritz Circuit Judge