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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

ALBERT C. BURGESS, JR.

Petitioner,

vs. Case No.: 5:11cv64/RS/EMT

PAIGE AUGUSTINE,

Respondent

ORDER and REPORT AND RECOMMENDATION

This matter is before the court upon Petitioner’s amended petition for writ of habeas corpus

filed pursuant to 28 U.S.C. § 2241 (doc. 4). Respondent has filed a response (doc. 8), and Petitioner

has replied and filed an incorporated motion for Rule 11 sanctions (doc. 10). Petitioner’s motion

for sanctions will be denied. And, for the reasons that follow, the undersigned recommends that the

petition be dismissed without prejudice for Petitioner’s failure to properly exhaust his administrative

remedies and due to his pending direct appeal.

Background

Petitioner is a federal inmate currently incarcerated in the Federal Correctional Institution

at Marianna, Florida. He was convicted in the Western District of North Carolina of violating 18

U.S.C. § 2252(A)(4)(B) & (A)(2), an offense which involved possession of materials involving

sexual exploitation of minors and knowingly receiving by computer visual depiction of such

materials. He was sentenced to a term of 292 months imprisonment, followed by supervised release

for life and ordered to pay a $200 special monetary assessment and restitution totaling $305,219.86

(doc. 8, declaration of Laura McNeill, attachment 3, Judgement and Commitment Order at 2, 3 &

4). His case is currently pending on appeal before the Fourth Circuit (doc. 4 at 2). The essence

of Petitioner’s argument is that the Bureau of Prisons (“BOP”) has improperly ordered him to pay

$200 per month in restitution, contrary to his Judgment and Commitment Order, which he states

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required payments of $50.00 per month upon his release (id. at 3). He asserts that “once his

conviction is reversed” he has no chance of recovering this money (id.). He also claims that the

BOP’s determination of the required monthly payment is in violation of due process and BOP policy

(id. at 4). Finally, he asserts that imposition of restitution violates United States v. Booker, 125 S.Ct.

738 (2005) and that the total amount of restitution is excessive (id. at 4–5). As relief, Petitioner asks

that the restitution amount be stayed for an unspecified period of time, or that the district court’s

restitution order be stricken. Respondent urges that the petition be denied as Petitioner has failed

to exhaust his administrative remedies and alternatively, because it fails to state a claim.

Exhaustion

Although the statutory exhaustion requirement of the Prison Litigation Reform Act

(“PLRA”) does not apply to habeas petitions, it is well established that prisoners must exhaust

administrative remedies before habeas relief may be granted, including relief pursuant to § 2241. 

Skinner v. Wiley, 355 F.3d 1293, 1295 (11th Cir. 2004); Carmona v. United States Bureau of

Prisons, 243 F.3d 629, 632, 634 (2d Cir. 2001) (addressing § 2241 petition); Fuller v. Rich, 11 F.3d

61, 62 (5th Cir. 1994) (addressing § 2241 petition); Little v. Hopkins, 638 F.2d 953, 953–54 (6th

Cir. 1981) (discussing habeas petitions in general); United States ex rel. Sanders v. Arnold, 535 F.2d

848, 850–51 (3d Cir. 1976) (same); Willis v. Ciccone, 506 F.2d 1011, 1014–15, n.3 (8th Cir. 1974)

(same). “Exhaustion of administrative remedies is jurisdictional” when a petition for writ of habeas

corpus is brought pursuant to § 2241 for release from a federal prison, or when a petitioner seeks

to challenge an agency action in court. Winck v. England, 327 F.3d 1296, 1300 n.1 (11th Cir. 2003)

(citations omitted) (recognizing that although there is no statutory requirement that a federal inmate

exhaust his administrative remedies prior to filing a § 2241 writ of habeas corpus, exhaustion is

jurisdictional in the Eleventh Circuit, and distinguishing such cases from habeas actions filed by

state inmates under § 2254 and habeas actions filed by members of military forces convicted by

special courts-martial); Gonzalez v. United States, 959 F.2d 211, 212 (11th Cir. 1992) (citing United

States v. Lucas, 898 F.2d 1554, 1556 (11th Cir. 1990) (requirement that prisoners exhaust

administrative procedures prior to seeking relief in district court is jurisdictional)); Boz v. United

States, 248 F.3d 1299, 1300 (11th Cir. 2001) (per curiam) (district court lacked jurisdiction to hear

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petition of alien who had not exhausted available administrative remedies and who had not shown

that administrative remedy will not provide relief commensurate with his claim). 

The BOP provides a four-level administrative grievance procedure for prisoner complaints. 

28 C.F.R. § 542.10-542.16. Initially, prisoners must seek resolution of issues informally. Id. at §

542.13(a). If unsuccessful, an inmate must then, with some exceptions, file a formal written

Administrative Remedy Request (BP-9) with the institution. Id. at § 543.14. If dissatisfied with the

response, the inmate may appeal to the Regional Director (BP-10). Id. at § 542.15(a). Finally, an

inmate may appeal the Regional Director’s response to the General Counsel for the BOP. Id. Each

of these steps is generally required to satisfy the exhaustion prerequisite. Furthermore, an inmate

is required to exhaust administrative remedies before seeking habeas relief, rather than doing so

while a petition is pending. Meagher v. Dugger, 737 F. Supp. 641, 643 (S.D. Fla. 1990).

In this case, Petitioner admits that he has not properly exhausted his administrative remedies

prior to filing suit. His case is therefore subject to dismissal on that ground. Petitioner argues in his

initial petition that exhaustion is a “Court created requirement made to slow down petitions,” is

“unconstitutional,” and “is not required by law” (doc. 4 at 3, 4, 5). In his reply he argues that

attempts at exhaustion would be futile (doc. 10 at 4).1

 Regardless of Petitioner’s—or even this

court’s—view of the exhaustion requirement as applied to habeas petitions, it is mandated by the

case law set forth above. Petitioner’s conclusory assertion that he should be excused from the

exhaustion requirement because exhaustion would be futile is not well-taken. This district court has

recognized that the § 2241 exhaustion requirement is judicially created, not statutorily, and that

judicially created exhaustion requirements ordinarily are subject to narrow exceptions, including

futility, although “there are grounds for doubt that a futility exception is available on a § 2241

petition in this circuit.” Garcia v. Middlebrooks, No. 5:08cv165/RH/MD, 2008 WL 2775951, at *1

(N.D. Fla. July 12, 2008) (citing Jaimes v. United States, 168 Fed. Appx. 356, 359 (11th Cir. 2006)

1 Part of Petitioner’s argument regarding futility is based on Respondent’s alleged “bad

faith.” As evidence of this he cites declarant Laura McNeil’s failure to “even read what she signs

under penalty of perjury,” noting that the heading of her declaration reflects an incorrect case style

(doc. 10 at 4; doc. 8, declaration of Laura McNeil). A proof-reading error, particularly relating to

a non-substantive detail, does not present proof of anything sinister, much less “bad faith.” 

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(“Given our precedent that the exhaustion requirement in § 2241 cases . . . is jurisdictional, whether

he may even assert a futility exception to the requirement is questionable.”); Winck, 327 F.3d at

1300 n.1. Furthermore, even if a futility exception were available, Petitioner has alleged no grounds

for invoking it in this case. He apparently bypassed the administrative grievance procedure in its

entirety as his first correspondence to the court is dated less than six months from the date of his

Judgment and Commitment Order. His assertion of futility could be raised by virtually any other

habeas petitioner, and thus he has not met his burden of establishing “extraordinary circumstances”

justifying waiver of the exhaustion requirement, assuming that judicial waiver of the exhaustion

requirement is available. See Irwin v. Hawk, 40 F.3d 347, 349 (11th Cir. 1994) (requiring

exhaustion in prisoner civil rights case even when denial of claim is likely because “[l]ight[ ]ning

may strike; and even if it doesn’t, in denying relief the Bureau may give a statement of its reasons

that is helpful to the district court in considering the merits of the claim”) (quoting Greene v. Meese,

875 F.2d 639, 641 (7th Cir. 1989)); see also Gonzalez v. United States, 959 F.2d 211, 212 (11th Cir.

1992) (holding that the BOP’s alleged failure to release an inmate on his presumptive release date

did not excuse the prisoner’s failure to exhaust). 

The court also notes that it does not have jurisdiction to consider Petitioner’s attack on the

propriety of the restitution order entered by the trial court. The Eleventh Circuit has expressly held

that “a petitioner who failed to contest a restitution order either at sentencing or on direct appeal

cannot for the first time challenge the district court’s initial restitution calculation in a collateral

proceeding absent exceptional circumstances.” Dohrmann v. United States, 442 F.3d 1279, 1280–81

(11th Cir. 2006) (citing Cani v. United States, 331 F.3d 1210, 1213–14 (11th Cir. 2003)).

“Exceptional circumstances” are those “analogous to a showing of ‘cause and actual prejudice’ such

as would render reviewable a constitutional claim asserted for the first time in a habeas petition.” 

Cani, 331 F.3d at 1213–14 & n.2. Again, Petitioner has articulated no such exceptional

circumstances justifying a collateral attack of his restitution order, particularly since his direct

appeal is still pending.

Finally, the court notes that Petitioner urges that this matter be stayed pending his direct

appeal (doc. 10 at 4) rather than dismissed. A stay is not warranted as it would not resolve the

jurisdictional defect precipitated by his failure to exhaust his administrative remedies. See

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Meagher v. Dugger, 737 F. Supp. 641, 643 (S.D. Fla. 1990); Krist v. Eichenlaub, No.

5:09cv143/RS/MD; 2009 WL 4397225 (N.D. Fla. 2009) (citing Meaghan), aff’d 386 Fed. Appx. 920

(11th Cir. 2010).

Accordingly, it is ORDERED:

Petitioner’s motion for sanctions (doc. 10) is DENIED. 

And, based on the foregoing, it is respectfully RECOMMENDED:

That the amended petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2241

(doc. 4) be DENIED and DISMISSED without prejudice. 

At Pensacola, Florida, this 6th day of July 2011.

/s/ Elizabeth M. Timothy 

ELIZABETH M. TIMOTHY

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

Any objections to these proposed findings and recommendations must be filed within

fourteen (14) days after being served a copy thereof. Any different deadline that may appear

on the electronic docket is for the court’s internal use only, and does not control. A copy of

objections shall be served upon all other parties. Failure to object may limit the scope of

appellate review of factual findings. See 28 U.S.C. § 636; United States v. Roberts, 858 F.2d

698, 701 (11th Cir. 1988).

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