* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

1 Because Mr. Pelts appeals from an order dismissing a petition filed under 28 U.S.C. § 2241, no certificate of appealability under 28 U.S.C. § 2253 is required. See Bradshaw v. Story , 86 F.3d 164, 166 (10th Cir. 1996). 

## F I L E D United States Court of Appeals Tenth Circuit 

### DEC 17 1997 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

TROY PELTS,

Petitioner-Appellant,

v. PAGE TRUE, Warden, and A. GILL, Disciplinary Hearing Officer, LOMPOC Federal Prison,

Respondents-Appellees. Case No. 97-3070 (D.C. 96-3449-RDR) (District of Kansas)

ORDER AND JUDGMENT *
Before ANDERSON, HENRY, and BRISCOE, Circuit Judges

. Troy Pelts alleges in a 28 U.S.C. § 2241 1 habeas petition that he was denied due process in administrative disciplinary proceedi ngs conducted in June 1995 at a federal penitentiary. The district court decline d to review Mr. Pelts’s petition because he failed to appeal in a timely manner at t he administrative level and2 After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of this appeal. SeeFed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore ordered submitted without oral argument. 2 could not show the cause and prejudice required bec ause of his procedural default. We affirm, agreeing with the district cou rt that Mr. Pelts cannot show good cause for his procedural default. 2 On June 25, 1995, while housed at the federal penit entiary in Lompoc, California, Mr. Pelts received an incident report f or violation of three institutional rules. At a hearing on July 13, 1995, a disciplina ry officer found Mr. Pelts guilty of all three charges and sanctioned him with a disc iplinary transfer, sixty days of disciplinary segregation, loss of good time, and lo ss of visitation and commissary privileges. Mr. Pelts appealed to the Bureau of Pr isons Western Regional Office, and on August 9, 1995, the Acting Regional Directordenied Mr. Pelts’s appeal. Mr. Pelts appealed to the national level, the Gener al Counsel at the Bureau of Prisons in Washington, D.C., on August 28, 1995. H owever, the General Counsel returned the appeal because Mr. Pelts failed to sub mit the requisite number of copies and gave Mr. Pelts an additional fifteen day s from August 31, 1995, to resubmit his appeal. Mr. Pelts did not resubmit hi s appeal until July 16, 1996, almost eleven months later. Because his appeal was untimely, the General Counsel refused to entertain it. Mr. Pelts offers as the excuse for his tardiness3

that he was about to be transferred when the Genera l Counsel returned his appeal and that he was in fact transferred to Leavenworth on September 8, 1995. Federal prisoners are ordinarily required to exhaus t administrative remedies before petitioning for a writ of habeas corpus. Se e Brice v. Day , 604 F.2d 664 (10th Cir. 1979). Because Mr. Pelts failed to appe al in a timely manner, he has committed a procedural default which makes administ rative review of his claim unavailable, and we will only consider his § 2241 p etition if he can demonstrate cause and prejudice. See Moscato v. Federal Bureau of Prisons , 98 F.3d 757, 761 (3rd Cir. 1996); Sanchez v. Miller , 792 F.2d 694, 697 (7th Cir. 1986); cf. Wolff v. United States , 737 F.2d 877, 880 (10th Cir. 1984) (“if there is good cause for not having advanced the particular matter relied on in the federal collateral habeas corpus proceeding at trial, and there is actual pre judice, then federal relief may be available”). Mr. Pelts has not demonstrated cause for his failure to appeal in a timely manner. Although he was transferred to Leav enworth on September 8, the only reason his appeal was returned to him was beca use he did not submit enough copies, an error he likely could have remedied betw een August 31 and September 8. Even if he could not have sent more copies befo re being transferred to Leavenworth, he could have made an effort to resubm it his appeal to the General Counsel’s office shortly after his transfer. He di d not, and he offers us no explanation for his delay of almost eleven months. Therefore, his petition is4

dismissed as barred by procedural default. The man date shall issue forthwith. Entered for the Court,
Robert H. Henry Circuit Judge