Summary Calendar EDGAR ALEXANDER HERRERA-VILLATORO v. Warden Joe D. Driver

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 06-41689
Summary Calendar
EDGAR ALEXANDER HERRERA-VILLATORO
Petitioner-Appellant
v.
WARDEN JOE D. DRIVER
Respondent-Appellee
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:06-CV-30
Before HIGGINBOTHAM, STEWART, and ELROD, Circuit Judges.
PER CURIAM:*
Edgar Alexander Herrera-Villatoro (“Herrera”), federal inmate # 97107-
079, appeals the dismissal without prejudice of his 28 U.S.C. § 2241 petition for
failure to exhaust administrative remedies. Herrera challenged the starting
date of his federal sentence for illegal reentry and argued that he should have
received credit for the Texas state sentence he served after the state revoked his
deferred-adjudication probation.
United States Court of Appeals
Fifth Circuit
F I L E D
February 12, 2008
Charles R. Fulbruge III
Clerk

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No. 06-41689
2
Before filing the instant action, Herrera did not complete the final step of
the administrative process provided by the Federal Bureau of Prisons. The
Central Office of the Bureau of Prisons twice rejected his appeal, finding that the
first appeal was untimely and the second appeal did not include the correct
number of copies or a copy of the Institution Administrative Remedy Request
Form or warden’s response. Herrera therefore failed to exhaust properly his
available administrative remedies. See Woodford v. Ngo, 126 S.Ct. 2378, 2386-
87 (2006) (holding that habeas exhaustion requires proper exhaustion of the
administrative process). Consequently, the district court did not abuse its
discretion by dismissing the action without prejudice to Herrera’s return to
federal court once his administrative remedies are fully exhausted. See Fuller
v. Rich, 11 F.3d 61, 62 (5th Cir. 1994). The judgment of the district court is
AFFIRMED.

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