*

 This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,

however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th

Cir. R. 32.1.

FILED

United States Court of Appeals

Tenth Circuit

January 22, 2010

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

JUAN QUINTANA-NAVARETTE,

Petitioner-Appellant,

v. No. 09-1330

RENE G. GARCIA, Warden,

Respondent-Appellee.

(D.C. No. 09-cv-00378-ZLW-BNB)

(D. Colo.)

ORDER AND JUDGMENT*

Before KELLY, BRISCOE, and HOLMES, Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially 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, submitted without oral argument. 

 Juan Quintana-Navarette, seeking to proceed in forma pauperis, filed a pro

se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 which the

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district court ultimately dismissed without prejudice for failure to exhaust

administrative remedies. Exercising jurisdiction pursuant to 28 U.S.C. § 1291,

we AFFIRM the district court’s dismissal of Quintana-Navarette’s petition and

GRANT Quintana-Navarette’s Motion for Leave to Proceed in forma pauperis.

I

Quintana-Navarette is incarcerated at the Federal Correctional Institution in

Englewood, Colorado (“F.C.I. Englewood”) where he is serving a 120-month

sentence for conspiring to distribute or possess with intent to distribute over 1000

kilograms of marijuana in violation of 21 U.S.C. § 846(a)(1). His projected

release date with good time credit is May 22, 2014.

On February 24, 2009, Quintana-Navarette filed a pro se petition for a writ

of habeas corpus pursuant to 28 U.S.C. § 2241 in the United States District Court

for the District of Colorado. Quintana-Navarette’s petition named K. Johnson,

the acting warden at F.C.I. Englewood, as Respondent and alleged that the Bureau

of Prisons (“BOP”) has wrongfully denied him (1) good time credits that he has

earned through participation in certain BOP educational programs, and (2) a

placement at a federal prison camp. At the district court’s direction, Johnson

filed Preliminary and Supplemental Responses to Quintana-Navarette’s petition,

limited to the affirmative defense of failure to exhaust administrative remedies. 

Quintana-Navarette filed a Reply and Supplemental Reply to Johnson’s

Responses. Ultimately, the district court dismissed Quintana-Navarette’s petition

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without prejudice for failure to exhaust his administrative remedies. QuintanaNavarette then filed a Fed. R. Civ. P. 59(e) Motion for Reconsideration which the

district court denied. On appeal, Quintana-Navarette argues that the district

court’s dismissal of his petition was in error because (1) he has exhausted his

administrative remedies, and/or (2) his petition is ripe for review even in the

absence of exhaustion. 

II

“We review the district court’s dismissal of a § 2241 habeas petition de

novo.” Broomes v. Ashcroft, 358 F.3d 1251, 1255 (10th Cir. 2004). Because

Quintana-Navarette’s pleadings were filed pro se, we construe them liberally. See

Van Deelen v. Johnson, 497 F.3d 1151, 1153 n.1 (10th Cir. 2007). 

While § 2241 does not contain an express exhaustion requirement, we have

held that exhaustion of administrative remedies is considered a prerequisite to the

filing a federal habeas corpus petition pursuant to § 2241. See Williams v.

O’Brien, 792 F.2d 986, 987 (10th Cir. 1986) (per curiam). Further, the

exhaustion requirement is satisfied only through proper use of the available

administrative remedies. See Woodford v. Ngo, 548 U.S. 81, 90 (2006). An

inmate seeking to file a § 2241 habeas petition exhausts his or her administrative

remedies by complying with the Bureau of Prisons’ (“BOP”) Administrative

Remedy Program which is set forth in 28 C.F.R. §§ 542.10-.19. According to the

terms of this program, an inmate seeking relief is generally required to begin by

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attempting to resolve his or her complaint informally by submitting a Request for

Informal Resolution, also known as a BP-8, to his or her Correctional Counselor. 

See 28 C.F.R. § 542.13(a). If the inmate is not satisfied by the Correctional

Counselor’s response to his or her BP-8, the inmate may then file a formal

Request for Administrative Remedy, or BP-9, with the warden of the institution

where he or she is confined. See id. § 542.14(a). If the inmate is dissatisfied

with the warden’s response to the BP-9, he or she may then file a Regional Office

Administrative Remedy Appeal, or BP-10, with the regional office of the BOP. 

See id. § 542.15(a). And finally, if the inmate is still dissatisfied, he or she may

file an Administrative Remedy Appeal, or BP-11, with the National Inmate

Appeals Administrator in Washington, D.C. See id.

During the course of the process, “[a]n inmate may not raise . . . issues not

raised in . . . lower level filings,” or “combine Appeals of separate lower level

responses.” Id. § 542.15(b)(2). Accordingly, inmates must progress through the

BOP Administrative Remedy Program in lockstep. Because, however, the BOP

does not begin to track an inmate’s actions until he or she has submitted a formal

Request for Administrative Remedy, or BP-9, see ROA Vol. 1 at 49 (¶ 6), it is

incumbent upon an inmate seeking to submit a BP-9, to demonstrate that he or she

has filed a Request for Informal Resolution, or BP-8, or that this requirement has

been excused pursuant to one of the exceptions set forth in 28 C.F.R. § 542.13(b).

According to BOP records submitted as part of the record on appeal,

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Quintana-Navarette has filed seven requests for administrative remedies, four of

which are relevant to the issues he raises in his § 2241 petition. Two of the four

relevant requests that the BOP has received from Quintana-Navarette were

Requests for Administrative Remedies, or BP-9s. These requests were received

by the Administrative Remedy Clerk on October 27, 2008 and January 6, 2009,

and assigned Numbers 513411-F1 and 521420-F1, respectively. The BOP

ultimately rejected both of these BP-9s because Quintana-Navarette failed to

provide evidence that he had tried to informally resolve his complaints—by filing

BP-8s—before filing them. See ROA Vol. 1 pp. 52 (¶ 16), 53 (¶ 18), 65-66. The

two other relevant requests that the BOP received from Quintana-Navarette were

appeals from the rejection of his first BP-9—513411-F1—and came in the form

of: (1) a Regional Office Administrative Remedy Appeal, or BP-10; and (2) an

Administrative Remedy Appeal, or BP-11. The BOP rejected both of these

appeals, again based on Quintana-Navarette’s failure to file a BP-8 at the

institutional level.

A

On appeal, Quintana-Navarette first contends that the district court erred in

finding that he has not exhausted his administrative remedies because he alleges

that he did seek to resolve his complaints informally before filing the relevant

formal requests. In support of this position, Quintana-Navarette provides copies

of several “cop-out” forms that he alleges he submitted to prison staff between

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April and October of 2008, as well as unsigned copies of two Request for

Informal Resolution forms, or BP-8s, that he alleges he submitted to BOP staff in

October of 2008. According to Quintana-Navarette, because he did not receive a

response to these documents, he was entitled to move forward with the

aforementioned formal requests and appeals. See Aplt. Op. Br. at 9 (referencing

28 C.F.R. § 542.18 which notes that at each level of BOP review, “[i]f the inmate

does not receive a response within the time allotted for reply, including extension,

the inmate may consider the absence of a response to be a denial at that level.). 

And because the staff at F.C.I. Englewood did not provide rejection notices to

these informal requests until after the deadline to file formal requests had passed,

the only proof of compliance he could offer was unsigned copies of these

documents. Finally, Quintana-Navarette contends that his ability to file the

aforementioned formal requests is prima facie evidence that he submitted the

required informal requests because “[t]he staff at the institution would not have

given the forms he requested [BP-9s] had he not demonstrated a need for them[,]

i.e., his having already submitted the pre-requisite form.” Id. at 10.

Quintana-Navarette’s argument is unavailing. To begin, “cop-outs” are not

considered part of the BOP’s administrative remedy program and according to

BOP staff they are not “the form inmates are required to use to seek informal

resolution of their complaints prior to filing a formal BP-9.” ROA Vol. 1 at 50

(¶10). Further, even if the unsigned informal requests are the only physical

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evidence that Quintana-Navarette can provide in support of his contention that he

in fact submitted them, he offers no corroborating evidence, such as the name of

the individual to whom they were submitted, to support this position. Cf.

Northington v. Jackson, 973 F.2d 1518, 1520-21 (10th Cir. 1992) (noting that

even though pro se filings are construed liberally, “the court should not assume

the role of advocate, and should dismiss claims which are supported only by

vague and conclusory allegations”). And finally, Quintana-Navarette’s

submission of the relevant formal requests is not prima facie evidence of his

submission of the required informal requests because according to BOP Program

Statement P1330.16, even if an inmate “refuses to present a request informally,

staff should provide the form for a formal request.” ROA Vol. 1 at 106. In sum,

the district court did not err in concluding that Quintana-Navarette failed to

exhaust his administrative remedies.

B

Quintana-Navarette’s final argument on appeal is that because he has

demonstrated a lack of integrity in the administration of the BOP’s administrative

remedy process at F.C.I. Englewood, his § 2241 petition is ripe for review even in

the absence of exhaustion. Once again, Quintana-Navarette’s argument is without

merit because, as previously noted, exhaustion is a prerequisite to the filing of a §

2241 habeas petition, see Williams, 792 F.2d at 987, and Quintana-Navarette cites

no legal authority which recognizes an exception to this rule based on the

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integrity of the administration processes at an individual facility.

III

We AFFIRM the district court’s dismissal of Quintana-Navarette’s § 2241

habeas petition and GRANT Quintana-Navarette’s Motion for Leave to Proceed in

forma pauperis.

Entered for the Court

Mary Beck Briscoe

Circuit Judge

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