Castano v. Everhart

*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opinion should not be published and is not precedent except under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.
United States Court of Appeals
Fifth Circuit
F I L E D
May 21, 2007
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 06-41035
Summary Calendar
ALEJANDRO CASTANO,
Petitioner-Appellant,
versus
KEN EVERHART, Acting Warden,
Respondent-Appellee.
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:06-CV-194
Before GARWOOD, DEMOSS and BENAVIDES, Circuit Judges.
PER CURIAM:*
Alejandro Castano, federal prisoner # 08673-035, appeals the
district court’s dismissal of his 28 U.S.C. § 2241 petition for
failure to exhaust his administrative remedies. Castano argues
that he should not have to exhaust his administrative remedies
because he is entitled to an immediate release from prison and,
thus, administratively exhausting his claim will delay his release

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from prison by months.
A federal prisoner seeking credit on his sentence may “file
his petition pursuant to § 2241, but he must first exhaust his
administrative remedies through the Bureau of Prisons.” United
States v. Gabor, 905 F.2d 76, 78 n.2 (5th Cir. 1990). Dismissal
without prejudice of a federal prisoner’s section 2241 suit for
failure to exhaust administrative remedies is reviewed for abuse of
discretion. Fuller v. Rich, 11 F.3d 61 at 62 (5th Cir. 1994).
“Exceptions to the exhaustion requirement are appropriate
where the available administrative remedies either are unavailable
or wholly inappropriate to the relief sought, or where the attempt
to exhaust such remedies would itself be a patently futile course
of action.” Id. Exceptions to the exhaustion requirement apply
only in “extraordinary circumstances,” and Castano bears the burden
of demonstrating the futility of administrative review. See id.
Castano has failed to carry his burden. He has not shown that
available administrative remedies are either unavailable or wholly
inappropriate to the relief sought. Moreover, he has not shown
that exhausting his claim administratively is futile in the sense
that BOP routinely denies claims such as his.
Castano’s “futility argument” is essentially an assertion that
his sentence-calculation claim is meritorious and that he should
therefore not have to endure any delay caused by seeking
administrative review of the claim. The documents provided by

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Castano, however, while not definitively showing that his claim is
without merit, suggest that it likely is.
Even if Castano’s claim is meritorious, however, and if he has
to suffer a delay to his immediate release while his claim
progresses through the administrative review process, that delay is
one of his own making. Castano states in his appellate brief that
he learned of the alleged erroneous sentence calculation when he
first arrived at Bureau of Prisons, which, according to the
documents presented by Castano, was in 1995. In addition, the
“Sentence Monitoring Computation Data” sheet submitted by Castano
is dated August 2004. Castano did not file his section 2241
petition, however, until 2006. Given Castano’s lack of diligence
in pursuing this claim, he has not shown that his case presents
“extraordinary circumstances” warranting an exception to the
exhaustion requirement. See Fuller, 11 F.3d at 62. Cf. Deters v.
Collins, 985 F.2d 789, 796-97 (5th Cir. 1993) (failure to exhaust
state remedies); Cox v. Johnson, 878 F.2d 414, 419 (D.C. Cir. 1989)
(finding exhaustion [under 20 U.S.C. § 1415] not futile where,
inter alia, both parties contributed to delay).
Castano has not carried his burden of showing that an
exception to the exhaustion requirement should be applied. The
judgment is modified so that the dismissal is “without prejudice”
and as so modified is affirmed.
AFFIRMED AS MODIFIED

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