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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

CHARLES MERIWEATHER.

Petitioner,

vs. Case No.: 5:11cv118/MCR/EMT

PAIGE AUGUSTINE,

Respondent

REPORT AND RECOMMENDATION

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

filed pursuant to 28 U.S.C. § 2241 (doc. 5). The Government has filed a response (doc. 10), and

Petitioner has replied (doc. 15). 

Background

At the time he filed his petition, Petitioner was a federal inmate incarcerated in the Federal

Correctional Institution at Marianna, Florida. His last communication with the court was a notice

of change of address to what appeared to be a non-custodial address on August 30, 2011 (doc. 18). 

Bureau of Prison records reflect an “actual or projected” release date of April 30, 2012.1

Petitioner was convicted in the Middle District of Tennessee of possession with intent to

distribute cocaine and sentenced on November 14, 2008, to a term of 51-months imprisonment (doc.

10, att. 5). Before his federal conviction at age 30, Petitioner had amassed 19 criminal history

points, from Tennessee state court convictions, primarily for drug and theft charges (id. at att. 1). 

It is the calculation of his federal sentence as it relates to his state sentences that is the subject of the

instant § 2241 petition. Specifically, Petitioner contends he should have received sentence credit

1

Record for Charles Edward Meriweather, inmate register number 18416-075 retrieved using

http://www.bop.gov/iloc2/LocateInmate.jsp

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when, after serving significant jail time, two of his state convictions were set aside on appeal. After

this, he entered into new plea agreements on the state charges and was sentenced to community

correction instead of jail time (doc. 5 at 3). He claims that his rights were violated when he did not

receive credit against his federal sentence pursuant to Bureau of Prison (“BOP”) Program Statement

5880.28 for the time served in state custody, since this custodial time had not been credited to any

other sentence.

Included with the amended petition is a copy of a grievance response, which reflects that

Petitioner grieved this issue to Warden Augustine in July of 2010 (doc. 5 at 8). The warden advised

him that she was waiting for a response from the Designation and Sentence Computation Center

(“DSCC”), and that the response was for “informational purposes only” (id.). Also appended to the

petition is a copy of a March 10, 2011 e-mail from Candace Whisman, Director of Sentence

Management Services in the Tennessee Department of Correction, to E. Dickens at the BOP (id. at

9). In this email, Ms. Whisman explains that after two of Petitioner’s state sentences were set aside,

he entered pleas and was resentenced to a community-based alternative to an incarceration program

(id.). Therefore, Petitioner did not receive credit for the time he had served in custody, and he would

not receive such credit unless he violated the terms of his community corrections sentence and the

court resentenced him to a traditional custodial sentence (id.). On the final page of his petition form,

Petitioner states “Due to immediate release it would have been harmful for me to keep pursuiting

[sic] the adminerstraded [sic] rememy [sic] [be]cause DSCC has say [sic] they were not giving me

the credits” (sic) (id. at 7). Thus, in effectm Petitioner admits he abandoned pursuit of his

administrative remedies. Respondent seeks dismissal of the petition on this basis.

Exhaustion

Although the exhaustion requirement of the Prison Litigation Reform Act (“PLRA”) does

not apply to habeas petitions, it is well established that individuals seeking habeas relief must

exhaust administrative remedies before such 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

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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.2

 Winck v. England,

327 F.3d 1296, 1300 n.1 (11th Cir. 2003) (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)); United States v. Mitchell, 845 F.2d 951, 952–53 (11th Cir. 1988) (district court does

not have jurisdiction to entertain petition seeking sentence credit until defendant has exhausted his

administrative remedies; after final administrative decision, a dissatisfied prisoner may seek review

of that decision) (citation omitted). Also jurisdictional is “[t]he general rule . . . that a challenge to

agency actions in the courts must occur after available administrative remedies have been pursued.” 

Boz v. United States, 248 F.3d 1299, 1300 (11th Cir. 2001) (per curiam) (internal quotation marks

and citation omitted). 

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

2

At this juncture, Defendant actually seeks release not from federal prison but from federal

custody. Because he is still serving a term of supervised release, he is still “in custody.” See United

States v. Wysocki, 2012 WL 445926 (11th Cir. 2012) (citing United States v. Brown, 117 F.3d 471,

475 (11th Cir. 1997)).

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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, and his petition is subject to dismissal on that ground. Petitioner’s attempt to

argue that it would have been “harmful” for him to continue to pursue his administrative remedies

is unpersuasive. Although this district court has recognized that the § 2241 exhaustion requirement

is judicially created, not statutory, and judicially created exhaustion requirements ordinarily are

subject to narrow exceptions, including futility, “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) (“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. The warden’s response from

which Petitioner failed to appeal was dated July 4, 2010, well before the April 20, 2011 date he

signed his original petition. His failure to appeal that decision in a timely manner in accordance

with the administrative procedures does not meet 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)); Gonzalez, 959 F.2d at 212 (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). 

It is thus obvious from the face of the petition, as well as the documentation provided by

Respondent, that Petitioner failed to exhaust his administrative remedies prior to filing this habeas

action. This failing operates as a jurisdictional bar that precludes the district court’s consideration

of the merits of the petition. For this reason, this case should be dismissed. 

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Accordingly, it is respectfully RECOMMENDED:

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

(doc. 5), be DENIED and DISMISSED with prejudice. 

At Pensacola, Florida, this 30th day of April 2012.

/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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