# Council

> District Court, M.D. Alabama · December 2, 2025

URL: https://www.frixlaw.com/law-library/cases/11212980

## Case

- **Full name:** Clifton Council, Jr. v. Warden Washington
- **Court:** District Court, M.D. Alabama
- **Decided:** December 2, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11212980

## How later opinions describe it (automated extraction)

- declining to address the availability analysis because the exhaustion requirements were satisfied
- discussing § 3625’s preclusion as affecting subject matter jurisdiction

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION

CLIFTON COUNCIL, JR., )
Reg. No. 54111-509, )
)
Petitioner, )
)
v. ) CASE NO. 2:25-CV-312-WKW
) [WO]
WARDEN WASHINGTON, )
)
Respondent. )

MEMORANDUM OPINION AND ORDER
I. INTRODUCTION
Petitioner Clifton Council, Jr., an inmate in the custody of the Federal Bureau
of Prisons (BOP) at the Federal Prison Camp in Montgomery, Alabama, is serving
a 120-month sentence. See United States v. Council, No. 1:21-cr-86-SNLJ-5 (E.D.
Mo. Feb. 23, 2023), ECF Nos. 498, 537. Proceeding pro se, he filed a Petition for
Writ of Habeas Corpus under 28 U.S.C. § 2241, alleging that the BOP violated his
federal due process rights by denying him earned time credits under the First Step
Act of 2018 (FSA). (Doc. # 1 at 4, ¶ 31; Doc. # 1 at 5, ¶¶ 43–44.)
In response to the § 2241 petition, Respondent Warden Washington seeks
dismissal on the following grounds: (1) Petitioner’s claims regarding the calculation
of FSA credits are not ripe for review and thus subject matter jurisdiction is lacking;
(2) Petitioner did not exhaust his administrative remedies prior to filing this petition;
and (3) Petitioner fails to state a due process claim because he lacks a liberty interest
in FSA earned time credits. (Doc. # 10 at 2–3.) Thereafter, Petitioner filed a reply

brief. (Doc. # 11.)
For the reasons to follow, Respondent’s response is construed as containing:
(1) a Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction; and (2) a

Rule 12(b) motion to dismiss for failure to exhaust administrative remedies. See
Fed. R. Civ. P. 12(b). Based on a thorough review of the record, the petition must
be dismissed without prejudice for lack of subject matter jurisdiction or,
alternatively, to permit Petitioner to exhaust his administrative remedies. It is

unnecessary to reach Respondent’s third argument challenging the merits.
Additionally, no evidentiary hearing is necessary to resolve these motions. See Rule
8(a), Rules Governing Section 2254 Cases in the United States District Courts

[hereinafter, Rules Governing § 2254 Cases].1
II. BACKGROUND
In 2018, Congress passed the FSA. See Pub. L. No. 115-391, 132 Stat. 5194
(2018) (codified at 18 U.S.C. §§ 3621, 3624, 3631–35). The FSA’s provisions work

1 The Rules Governing § 2254 Cases apply to petitions under 28 U.S.C. § 2241. See Rule 1(b),
Rules Governing § 2254 Cases (providing that the Rules Governing § 2254 Cases apply to habeas
corpus petitions filed under provisions other than § 2254). Although the Rules Governing § 2254
Cases do not address motions to dismiss, they permit the application of the Federal Rules of Civil
Procedure when there is no conflict with the habeas statutes or rules. Rule 12, Rules Governing
§ 2254 Cases. In this instance, applying Rule 12(b) of the Federal Rules of Civil Procedure does
not present any conflict.
together to motivate eligible inmates to participate in recidivism-reduction programs
by awarding them earned time credits. §§ 3621(h), 3624(g), 3632. Participants may

earn 10 days, or in some instances 15 days, of credit for every 30 days of successful
program participation. Each earned time credit equals one day. See 18 U.S.C.
§§ 3621, 3624, 3631–35. Under the FSA, earned time credits are applied to

accelerate an inmate’s transfer either to prerelease custody, which includes
residential reentry centers and home confinement, or to supervised release if such a
term has been imposed. See 18 U.S.C. § 3624(g).
In his petition, filed in April 2025, Petitioner seeks the restoration of “24 days

of FSA” credit that he alleges he accumulated while in transit to FPC Montgomery
following his sentencing date and “60 days” the BOP disallowed from “his total FSA
placement days.”2 (Doc. # 1 at 1, ¶ 7; Doc. # 1 at 5, ¶¶ 46–47; Doc. # 1-1 at 2.) He

further complains that the BOP has projected only 360 days toward his FSA
conditional placement date, which the BOP has set as December 17, 2027. (Doc.
# 1 at 5 ¶ 48; see also Doc. # 1-1 at 4.) The FSA conditional placement date is the
date when a prisoner potentially is eligible for prerelease custody based on projected

earned FSA time credits. See Crowe v. Fed. Bureau of Prisons, 2025 WL 1635392,

2 Along with his petition, Plaintiff submitted a BOP document, titled “FSA Time Credit
Assessment,” dated February 26, 2025, which details Petitioner’s accrued program days,
disallowed program days, accrued earned time credits, and the potential applications of various
credits to his release and other placement dates. (Doc. # 1-1 at 2–4.)
at *4 (D.D.C. June 9, 2025). Based on Petitioner’s calculations, he anticipates
earning an additional 785 conditional placement days when those days are computed

through the end of his sentence. (Doc. # 1 at 5, ¶ 47; see also Doc. # 1 at 4, ¶¶ 32–
41.) He requests that these 785 days be added to his FSA conditional placement date
and argues that, with these correct projected calculations, his eligibility for

prerelease custody would be December 4, 2026. (Doc. # 1 at 5, ¶¶ 47, 48.) He
contends that the BOP is refusing to account for potential FSA time credits that could
be earned during future prerelease custody, which impacts the calculation of his
earliest possible prerelease placement date. (Doc. # 1 at 4, ¶¶ 40, 41.) Petitioner

requests the court to “order the Respondent to restore the days that were earned while
in transit, forecast all FSA credits throughout the duration of Petitioner’s sentence[,]
and apply those credits to early prerelease custody. . . .” (Doc. # 1 at 6.)

In his petition, Petitioner does not state whether prior to bringing the petition,
he exhausted the BOP’s administrative-remedy program. He seemingly concedes
his failure to do so by stating, “Petitioner prays that this Court accept this Emergency
Petition without requiring Petitioner to futily [sic] attempt to exhaust his

administrative remedies . . . .” (Doc. # 1 at 6.) However, federal prisoners, like
Petitioner, are subject to the BOP’s administrative-remedy program, codified at 28
C.F.R. § 542.10 et seq. (See Doc. # 10-1 (Decl. of Jason White).) This program

comprises a four-step process that a prisoner must complete to exhaust his
administrative remedies. See Shivers v. United States, 1 F.4th 924, 935 (11th Cir.
2021); (see also Doc. # 10-1 at 3, ¶ 6.)

With this factual background, the parties’ arguments are now examined.
III. DISCUSSION
A. Rule 12(b)(1) Motion to Dismiss for Lack of Subject Matter Jurisdiction:
The Ripeness Doctrine

Respondent contends that Petitioner’s claims “seeking a calculation of FSA
credits are not ripe for review,” and thus his petition must be dismissed. (Doc. # 10
at 2.) According to Respondent, as of the date he filed his response, Petitioner had
accrued 285 days of FSA time credits and had a projected release date of December
11, 2029, inclusive of good-conduct credits. (Doc. # 10 at 6.) Relying on 18 U.S.C.

§ 3624(g)(1)(A), Respondent argues that the petition is not ripe for judicial review,
as Petitioner’s accumulated earned time credits of 285 days do not equal the time
remaining on his sentence. (Doc. # 10 at 6–7 (citing § 3624(g)(1)(A) (providing that
an eligible prisoner’s FSA earned time credits are applied when they “equal . . . the

remainder of the prisoner’s imposed term of imprisonment”)).) Respondent
contends that Petitioner’s claim will not be ripe until at least December 11, 2028,
approximately 365 days before the sentence’s expiration if the maximum allowable

FSA earned time credits are applied toward an early release to supervised release.3

3 In his response, filed on September 4, 2025, Respondent represented that Plaintiff’s release date
was December 11, 2029. (Doc. # 10 at 6.) As of today, according to the BOP’s public website,
(Doc. # 10 at 6.) He argues that § 3624(g)(1)(A) exists because FSA earned time
credits can fluctuate based on inmates’ ongoing participation in eligible programs,

their recidivism risk classification, and any conduct resulting in disciplinary action.
(Doc. # 10 at 5–6.) Respondent cites several district court decisions from other
circuits, which have determined that a habeas claim alleging the BOP’s

miscalculation of FSA earned time credits is ripe for review only if a favorable
outcome would result in the petitioner’s imminent release. (Doc. # 10 at 6–7.)
Whether a claim is ripe presents a subject matter jurisdictional issue. Maron
v. Chief Fin. Officer of Fla., 136 F.4th 1322, 1329 (11th Cir. 2025). “A claim is not

ripe for adjudication if it rests upon contingent future events that may not occur as
anticipated, or indeed may not occur at all.” Texas v. United States, 523 U.S. 296,
300 (1998) (cleaned up). The ripeness doctrine prevents “courts, through avoidance

of premature adjudication, from entangling themselves in abstract disagreements
over administrative policies.” Nat’l Park Hosp. Ass’n v. Dep’t of Interior, 538 U.S.
803, 807 (2003) (citation and internal quotation marks omitted). It also shields

his release date is December 16, 2028. See Find an Inmate, Fed. Bureau of Prisons,
https://www.bop.gov/inmateloc/ (last visited Dec. 1, 2025). This court takes judicial notice of the
public records maintained on the BOP’s website. See Fed. R. Evid. 201(c); see also Naveleski v.
Int’l Paper Co., 244 F. Supp. 3d 1275, 1300 n.25 (N.D. Fla. 2017) (“[I]t is not uncommon for
courts to take judicial notice of factual information found on official governmental agency
websites.”); United States v. Basher, 629 F.3d 1161, 1165 n.2 (9th Cir. 2011) (taking judicial
notice of the BOP’s publicly accessible Inmate Locator records). The different dates appear to
result from the BOP’s application of 365 FSA earned time credits, which reduced Petitioner’s
sentence for an early transfer to supervised release. Resolving the calculation discrepancy is
unnecessary for the purposes of the present motion.
“agencies from judicial interference until an administrative decision has been
formalized and its effects felt in a concrete way by the challenging parties.” Id. at

807–08 (citation and internal quotation marks omitted). Because ripeness is
fundamentally an issue of timing, subsequent events can render a case ripe for
adjudication even if it was not ripe at the time of filing. Shorter v. Warden, 803 F.

App’x 332, 335 (11th Cir. 2020) (per curiam).
Since ripeness pertains to the court’s subject matter jurisdiction, the construed
motion to dismiss is examined under Rule 12(b)(1) of the Federal Rules of Civil
Procedure. See supra note 1. Under Rule 12(b)(1), challenges to subject matter

jurisdiction can be either facial or factual. Carmichael v. Kellogg, Brown & Root
Servs., Inc., 572 F.3d 1271, 1279 (11th Cir. 2009). The motion will be analyzed as
a facial challenge; therefore, the facts alleged in the petition will be taken as true.

See Maron, 136 F.4th at 1329.
As now explained, this petition is not ripe; however, this conclusion does not
rest on Respondent’s arguments. While Respondent cites non-binding cases linking
jurisdictional ripeness to a prisoner’s imminent release, he relies on the BOP’s

calculations to assert that Petitioner’s claims will not be ripe until at least December
11, 2028. (See Doc. # 10 at 6); but see infra note 4. Yet, he overlooks Petitioner’s
calculations. While reconciling Petitioner’s calculations admittedly is a challenging

task, he asserts that he should be eligible for placement in prerelease custody by
December 4, 2026. (Doc. # 1 at 5, ¶ 48.) Assuming for purposes of this analysis
that Petitioner’s figures are correct and that he continues to qualify for earned time

credit (by, among other things, maintaining a low recidivism risk),4 the eligibility
date for placement in prerelease custody remains nearly a year away. On Petitioner’s
facts, his claims “rest[] upon contingent future events that may not occur as

anticipated, or indeed may not occur at all.”5 Texas, 523 U.S. at 300.
In his reply brief, Petitioner contends that his claims do not rely on uncertain
future events. He argues that the BOP currently does not factor in accrued and
projected FSA time credits when assigning inmates to the Residential Drug Abuse

Program (RDAP) and that his completion of the RDAP could potentially advance
his release date by an additional year. Petitioner contends that he filed his petition
promptly to ensure that all his FSA earned time credits are accurately projected to

allow him to participate in RDAP early enough to fully benefit from both the RDAP
and FSA programs. (Doc. # 11 at 3.) For the full benefit of both programs, Petitioner

4 18 U.S.C. § 3624(g) outlines the eligibility criteria for prisoners to have earned time credits
applied toward early transfer to prerelease custody or supervised release. First, the prisoner must
have earned time credits equal to the remainder of his imposed term of imprisonment. §
3624(g)(1)(A). Second, the prisoner must have demonstrated a reduced recidivism risk or
maintained a low risk during imprisonment. § 3624(g)(1)(B). Third, the prisoner’s remaining
sentence must have been computed “under applicable law.” § 3624(g)(1)(C). Fourth, for
placement in prerelease custody, the prisoner must have a minimum or low recidivism risk score
in the last two reassessments or have a petition approved by the warden. See § 3624(g)(1)(D)(i).
Fifth, for placement in supervised release, the prisoner must have been assessed as a minimum or
low risk to recidivate in the last reassessment. § 3624(g)(1)(D)(ii).

5 This Memorandum Opinion and Order makes no determination as to precisely when the petition
will ripen, as pinpointing an exact timeframe is unnecessary to resolve the current motion.
says that Respondent should have enrolled him in the RDAP by March 2025. (Doc.
# 1 at 5, ¶ 48.)

This court lacks jurisdiction to review the BOP’s individualized decisions
regarding RDAP placement, including any alleged delays in admission or
anticipated reductions for completion, which can be up to one year. See 18 U.S.C.

§ 3621(2)(B). Under § 3621(b), the BOP must provide appropriate substance abuse
treatment to prisoners with treatable conditions. However, even if a prisoner is
eligible for a sentence reduction upon completion of an RDAP, the decision to grant
it is solely at the BOP’s discretion and is not subject to judicial review. Cook v.

Wiley, 208 F.3d 1314, 1319 (11th Cir. 2000).6 “And that decision is not subject to
judicial review.” Id. (citing 18 U.S.C. § 3625(b)).
Based on the foregoing, the court cannot review claims of impermissible

delays in RDAP placement or claims that the BOP awarded less than a one-year
sentence reduction for RDAP completion. Petitioner cannot bypass this preclusion
by arguing that his claims for FSA time credits, both accrued and projected, are ripe
based on their potential effect on RDAP placement. Finally, Petitioner has

misrepresented the rulings of the out-of-circuit decisions he cites. None of these

6 The Ninth Circuit’s decision in Reeb v. Thomas, 636 F.3d 1224 (9th Cir. 2011), also is instructive.
In Reeb, the court held that based on the unambiguous language of 18 U.S.C. § 3625, district courts
do not have subject matter jurisdiction to review the denial of a sentence reduction, even after the
completion of the RDAP. It explained that “any substantive decision by the BOP to admit a
particular prisoner into RDAP, or to grant or deny a sentence reduction for completion of the
program, is not reviewable by the district court.” Id. at 1227.
cases addresses a ripeness challenge or supports the propositions he proffers. (See
Doc. # 11 at 4.) Accordingly, Respondent’s motion to dismiss for lack of subject

matter jurisdiction will be granted.7
B. Rule 12(b) Motion to Dismiss for Failure to Exhaust Administrative
Remedies8

The discussion in this section presumes, for argument only, that ripeness is
not a jurisdictional bar. Assuming subject matter jurisdiction exists, Respondent
moves to dismiss the § 2241 petition for failure to exhaust administrative remedies.
Petitioner counters that § 2241 imposes no exhaustion requirement. Alternatively,
if exhaustion is a requirement, he argues against it in his case, citing the
unavailability exception from Ross v. Blake, 578 U.S. 632 (2016), and claiming

futility as an exception. (Doc. # 1 at 1–2, ¶¶ 10–11; Doc. # 11 at 4–6.)

7 Regarding subject matter jurisdiction, Tompkins v. Warden Washington, 2025 WL 3243831
(M.D. Ala. Nov. 20, 2025), and Woolsey v. Washington, 2025 WL 2598794, (M.D. Ala. Sept. 8,
2025), provide additional insights concerning 18 U.S.C. § 3625. In these cases, the respondents
argued that the Administrative Procedure Act’s provisions related to judicial review (5 U.S.C.
§§ 701–706) do not apply to any “determination, decision, or order” by the BOP under 18 U.S.C.
§§ 3621 through 3626. See Tompkins, 2025 WL 3243831, at *4; Woolsey, 2025 WL 2598794,
at *12; see generally Reeb v. Thomas, 636 F.3d 1224, 1225–29 (9th Cir. 2011) (discussing § 3625’s
preclusion as affecting subject matter jurisdiction). However, Ҥ 3625 does not preclude judicial
review where the petitioner challenges the underlying regulations that establish the criteria
governing the BOP’s decision-making process.” Woolsey, 2025 WL 2598794, at *12 (citing Cook
v. Wiley, 208 F.3d 1314, 1314 (11th Cir. 2000); United States v. Warmus, 151 F. App’x 783, 786
(11th Cir. 2005); and Byrd v. Hasty, 142 F.3d 1395, 1397 (11th Cir. 1998)). Petitioner has not
directly challenged the BOP’s regulations, only their application to him personally, raising further
questions about this court’s subject matter jurisdiction.

8 “That motions to dismiss for failure to exhaust are not expressly mentioned in Rule 12(b) is not
unusual or problematic.” Bryant v. Rich, 530 F.3d 1368, 1375 (11th Cir. 2008). “[E]xhaustion
should be decided on a Rule 12(b) motion to dismiss; and in fact, this Circuit has previously done
so.” Id.
The following discussion pertaining to the motion to dismiss for failure to
exhaust administrative remedies unfolds in six parts. First, it rejects the argument

that § 2241 does not require exhaustion. Second, it addresses the necessity for a
§ 2241 federal inmate to exhaust all available administrative remedies within the
BOP system before filing the petition. Third, it explores the unavailability exception

to the administrative exhaustion requirements. Fourth, it examines the two-step
analysis for motions to dismiss based on failure to exhaust administrative remedies.
Fifth, it considers the potential and unsettled nature of a futility exception to the
exhaustion requirement. Sixth, the arguments for unavailability and futility are

analyzed.
1. The Judge-Made Requirement of Exhaustion Under § 2241
Petitioner’s first argument—that § 2241 does not require exhaustion—

contradicts Eleventh Circuit case law. In the Eleventh Circuit, “prisoners seeking
habeas relief, including relief pursuant to § 2241, are subject to administrative
exhaustion requirements.” Skinner v. Wiley, 355 F.3d 1293, 1295 (11th Cir. 2004)
(per curiam), abrogated on other grounds by, Santiago-Lugo v. Warden, 785 F.3d

467, 474–75 (11th Cir. 2015). These requirements for § 2241 petitions are “judge-
made,” Santiago-Lugo, 785 F.3d at 474, and do not originate from the Prison
Litigation Reform Act of 1996 (PLRA), 42 U.S.C. § 1997e.9

More than a decade after the Skinner decision, Santiago-Lugo clarified that
this “judge-made” exhaustion requirement “is still a requirement; it’s just not a
jurisdictional one.” 785 F.3d at 475. Courts cannot “disregard a failure to exhaust

and grant relief on the merits if the respondent properly asserts the defense.” Id.
However, they may “skip over” a properly raised exhaustion defense “if it is easier
to deny (not grant, of course, but deny) the petition on the merits without reaching
the exhaustion question.” Id. Non-jurisdictional, exhaustion requirements are

“claim-processing rules, . . . which seek to promote the orderly progress of litigation
by requiring that the parties take certain procedural steps at certain specified times.”
Id. at 472 (cleaned up). However, the exhaustion requirement “is not merely a

gratuitous hurdle imposed to inconvenience litigants. Rather, . . . it serves important
purposes.” Carrillo v. Warden FPC Pensacola, 2025 WL 1439526, at *2 (N.D. Fla.
Apr. 21, 2025), R. & R. adopted, 2025 WL 1433566 (N.D. Fla. May 19, 2025). As
summarized in Carrillo:

First, [the requirement] “protects administrative agency authority,”
giving an agency the “opportunity to correct its own mistakes with
respect to the programs it administers before it is haled into federal
court.” Second, it promotes efficiency because claims can sometimes

9 The Skinner court made it clear that the exhaustion requirement applicable to § 2241 petitions
does not come from the PLRA. See 355 F.3d at 1294 (“We, like several other circuits, have held
that the PLRA does not apply to habeas petitions . . . .”).
be resolved at the agency level, obviating the need to proceed to federal
court. “And even where a controversy survives administrative review,
exhaustion of the administrative procedure may produce a useful record
for subsequent judicial consideration.”

Id. (quoting Woodford v. Ngo, 548 U.S. 81, 89 (2006) (addressing the PLRA’s
exhaustion requirement)); see also Turner v. Burnside, 541 F.3d 1077, 1085 (11th
Cir. 2008) (describing the PLRA’s exhaustion requirement as “designed to eliminate
unwarranted federal-court interference with the administration of prisons” by
“seeking to afford corrections officials time and opportunity to address complaints
internally before allowing the initiation of a federal case.” (cleaned up)).
Here, Petitioner’s failure to exhaust will not be overlooked for two reasons.
First, Respondent has properly asserted this defense in his response. (Doc. # 10 at 7–

11.) Second, addressing the merits of the petition without considering exhaustion
would not simplify the analysis.
2. How a § 2241 Petitioner Exhausts Administrative Remedies
In the context of the PLRA, the United States Supreme Court has held that

“proper exhaustion” of administrative remedies is necessary. Woodford, 548 U.S.
at 84; see also Geter v. Baldwin State Prison, 974 F.3d 1348, 1354 (11th Cir. 2020)
(“The exhaustion requirement drawn from the PLRA means ‘proper exhaustion.’”
(quoting Woodford, 548 U.S. at 93)). To properly exhaust available administrative

remedies, “the inmate must use ‘all steps’ that the prison makes available.” Blevins
v. FCI Hazelton Warden, 819 F. App’x 853, 856 (11th Cir. 2020) (per curiam)
(quoting Woodford, 548 U.S. at 90). This means that “the inmate must comply with
the prison’s deadlines and other procedural rules, including the rules relating to the

filing of appeals.” Id. (citing Woodford, 548 U.S. at 90 and Bryant v. Rich, 530 F.3d
1368, 1378 (11th Cir. 2008)).
Determining the “boundaries of proper exhaustion” is done by “look[ing] to

the requirements of the applicable prison grievance system.” McGuire-Mollica v.
Fed. Bureau of Prisons, 146 F.4th 1308, 1314 (11th Cir. 2025) (quoting Sims v.
Sec’y, Fla. Dep’t of Corr., 75 F.4th 1224, 1230 (11th Cir. 2023)). Here, the
grievance system is the BOP’s administrative-remedy program.10 See Blevins, 819

F. App’x at 857 (“Because Blevins is a federal prisoner, the BOP’s Administrative
Remedy Program procedural rules apply to her.”).

10 The BOP’s administrative-remedy program comprises a four-step process that a prisoner must
complete to exhaust his administrative remedies. See Shivers v. United States, 1 F.4th 924, 935
(11th Cir. 2021); (see also Doc. # 10-1 at 3, ¶ 6.) First, the prisoner must submit an institutional-
level “informal resolution” request (typically a BP-8 form). See 28 C.F.R. § 542.13(a). Second,
the prisoner must file a BP-9 form within 20 days following the alleged incident that serves as the
basis for the request, unless the inmate demonstrates a valid reason for delay. See 28 C.F.R.
§ 542.14(a)–(b). Third, if unsatisfied with the warden’s response, an inmate may submit an appeal
using a BP-10 form to the appropriate regional director within 20 days of the date the warden
signed the response. See 28 C.F.R. § 542.15(a). Fourth, an inmate who is unsatisfied with the
regional director’s response may submit an appeal to the general counsel using the appropriate BP-
11 form within 30 days of the date the regional director signed the response. See id.

The regulations also provide response times at each level of the administrative-remedy program.
See 28 C.F.R. § 542.18. At the institutional level (BP-8 and BP-9), 20 calendar days from the date
of filing are allotted to respond to an inmate’s request. At the BP-10 level, the regional director
has 30 calendar days to respond. At the BP-11 level, the BOP’s general counsel has 40 calendar
days to respond. Id. An inmate exhausts administrative remedies only after properly and timely
seeking review at all four levels.
3. The Unavailability of Administrative Remedies as an Exception to the
§ 2241 Exhaustion Requirement
Blevins, drawing an analogy from PLRA decisions, recognized the
unavailability of administrative remedies as an “important exception to the
administrative exhaustion requirement” under § 2241, even when a prison has a

formal grievance procedure. 819 F. App’x at 856. An inmate is not obligated to
exhaust remedies that are unavailable. Id. (citing Ross v. Blake, 578 U.S. 632, 642
(2016)). The Blevins court identified an “unavailable” remedy as one that “cannot

capably be used to obtain some relief.” Id. (citing Ross, 578 U.S. at 641). Ross
outlined three circumstances where an administrative remedy, though formally in
place, is essentially unavailable and thus need not be exhausted.11 See 578 U.S.
at 633. These circumstances, as articulated in Blevins, are:

(1) where “despite what regulations or guidance materials may
promise,” the administrative process “operates as a simple dead end—
with officers unable or consistently unwilling to provide any relief to
aggrieved inmates,” (2) where the administrative process is “so opaque
that it becomes, practically speaking, incapable of use” because “no
ordinary prisoner can discern or navigate it,” and (3) where “prison
administrators thwart inmates from taking advantage of a grievance
process through machination, misrepresentation, or intimidation.”

11 In Ross v. Blake, the Supreme Court rejected the Fourth Circuit’s “special circumstances”
exception to the PLRA’s exhaustion requirement. 587 U.S. 632, 638 (2016). However, the Court
recognized a “textual exception” to mandatory exhaustion in the PLRA: “An inmate . . . must
exhaust available remedies, but need not exhaust unavailable ones.” Id. at 642. Although Ross
established the excepting circumstances in the context of the PLRA, the Eleventh Circuit in Blevins
applied these circumstances in determining whether the § 2241 petitioner’s administrative
remedies were unavailable, thereby exempting the petitioner from the exhaustion requirement.
Blevins, 819 F. App’x at 856.
819 F. App’x at 856 (quoting Ross, 578 U.S. at 643–44).
4. The Turner Two-Step Analysis for Deciding a Motion to Dismiss for
Failure to Exhaust Administrative Remedies When Unavailability is
Raised

Failure to exhaust administrative remedies is an affirmative defense. See
Turner v. Burnside, 541 F.3d 1077, 1082 (11th Cir. 2008). When a court reviews a
motion to dismiss a § 2241 petition for the petitioner’s failure to exhaust
administrative remedies and the petitioner argues that remedies are unavailable, a
two-step process applies. See Blevins, 819 F. App’x at 856 (citing Turner, 541 F.3d
at 1082).

First, the court examines “the inmate’s and respondent’s factual allegations,
and if they conflict, take[s] the inmate’s version of the facts as true.” Id. (citing
Turner, 541 F.3d at 1082). If the facts show that the inmate failed to exhaust

available administrative remedies, the petition “must be dismissed.” Id. (quoting
Turner, 541 F.3d at 1082). If the inmate’s petition is not dismissed under the first
step, the court “must proceed to the second step and ‘make specific findings in order
to resolve the disputed factual issues related to exhaustion.’”12 Id. (quoting Turner,

12 The exhaustion requirement in Turner originated from the PLRA. Relying on Bryant v. Rich,
530 F.3d 1368 (11th Cir. 2008), the court in Turner treated the defense of failure to exhaust under
the PLRA as a matter in abatement. Turner, 541 F.3d at 1082 (citing Bryant, 530 F.3d at 1374).
A matter in abatement is “not generally an adjudication on the merits.” Bryant, 530 F.3d at 1374.
Where exhaustion is treated as a matter in abatement, “it is proper for a judge to consider facts
outside of the pleadings and to resolve factual disputes so long as the factual disputes do not decide
the merits and the parties have sufficient opportunity to develop a record.” Id. at 1376 (footnote
omitted). The Blevins court acknowledged that “the unavailability exception stems from [PLRA]
541 F.3d at 1082). “And at that second step, the respondent bears the burden of
proving that that inmate has failed to exhaust available administrative remedies.” Id.

(citing Turner, 541 F.3d at 1082). After making findings on the disputed factual
issues, the court must “then decide[] whether under those findings the prisoner has
exhausted his available administrative remedies.” Id. at 857 (quoting Turner, 541

F.3d at 1083); see also McGuire-Mollica v. Fed. Bureau of Prisons, 146 F.4th 1308,
1314 (11th Cir. 2025) (describing Turner’s two-step process).
In Blevins, the Eleventh Circuit applied Turner’s and Ross’s principles in the
context of a § 2241 petition. See 819 F. App’x at 856–59. There, the petitioner

argued the appeal process was unavailable for several reasons. These reasons
included the regional director’s repeated rejection of her appeals as illegible (despite
her having used the materials provided by the prison), a disciplinary hearing officer’s

refusal to provide necessary materials for her appeal, and interference by prison staff
with her mail. Id. at 858. The district court acknowledged only one of the reasons
and summarily rejected it. See id. On appeal, the Eleventh Circuit found that the
petitioner’s proffered reasons aligned with the scenarios identified by the Supreme

Court in Ross that trigger the unavailability exception. Id. at 859 (citing Ross v.
Blake, 578 U.S. 632, 643–44 (2016)).

cases.” 819 F. App’x at 856 n.3. It noted also that the Eleventh Circuit “ha[d] applied that
exception to cases involving § 2241 petitions.” Id.
In reversing the district court’s dismissal of the petitioner’s § 2241 petition,
the Blevins court concluded that the lower court did not properly undertake the

Turner two-step analysis, noting that had the district court accepted the petitioner’s
allegations as true under the first Turner step, the warden would not have been
entitled to dismissal at that step. Id. at 858. The district court should have accepted

the petitioner’s allegations as true and proceeded to the second Turner step to make
specific findings to resolve disputed factual issues related to exhaustion. See id. at
859. Those findings then could have been used to resolve the legal question “about
whether the BOP rules adequately informed [the petitioner] about what to do after

the Regional Director rejected her appeal as illegible for the second time.” Id.
Because the district court failed to undertake a proper review, the Eleventh Circuit
reversed and remanded the case for further proceedings to make the necessary

findings related to the exhaustion of administrative remedies. See id. at 859–60.
The same year as Blevins, in Geter v. Baldwin State Prison, the Eleventh
Circuit explained how the Turner two-step process works incorporating Ross:
[A] proper Turner analysis of exhaustion after Ross requires the
plaintiff to allege a grievance procedure is unavailable to him in
response to the defendant’s affirmative defense of failure to exhaust.
Responding with allegations that a prison system is unavailable allows
the district court to complete the necessary analysis set forth in Turner
for evaluating whether a defendant is entitled to have a complaint
dismissed for failure to exhaust. See Turner, 541 F.3d at 1082
(requiring a court to compare “the factual allegations in the defendant’s
motion to dismiss and those in the plaintiff’s response” and accepting
the plaintiff’s version where there is a conflict). While the burden is on
the defendant to show an available administrative remedy, once that
burden has been met, the burden of going forward shifts to the plaintiff,
who, pursuant to Turner, must demonstrate that the grievance
procedure was “subjectively” and “objectively” unavailable to him. Id.
at 1085.

974 F.3d 1348, 1356 (11th Cir. 2020) (footnote omitted).13
In Geter, it was undisputed that the plaintiff “did not properly exhaust his
administrative remedies.” Id. at 1355. Rather, the sole dispute was “whether the
grievance process was ‘available’ to [the plaintiff].” Id. The plaintiff argued that
the process was unavailable due to his mental disabilities and misleading assistance
from a prison official. Id. Resultantly, the Eleventh Circuit found it unnecessary to
discuss Turner’s two-step analysis. Instead, it focused on the availability of the
grievance procedure. Id. at 1355 n.12 (citing Turner, 541 F.3d at 1082; cf. Dimanche
v. Brown, 783 F.3d 1204, 1214 n.3 (11th Cir. 2015) (declining to address the

availability analysis because the exhaustion requirements were satisfied)).
Another Eleventh Circuit decision further discussed a prison official’s burden
to demonstrate the availability of the administrative remedy. In Wright v. Georgia
Department of Corrections, 820 F. App’x 841 (11th Cir. 2020) (per curiam), the

Eleventh Circuit discussed Turner’s availability standard in evaluating an

13 This year, in Perttu v. Richards, 605 U.S. 460 (2025), the Supreme Court held “that parties are
entitled to a jury trial on PLRA exhaustion when that issue is intertwined with the merits of a claim
protected by the Seventh Amendment.” Id. at 479. Perttu impacts and modifies the application
of Turner’s holding in cases where the issue of administrative exhaustion is intertwined with the
merits of the claim. However, this issue does not arise in the present case.
exhaustion defense under the PLRA. The plaintiff-inmate contended, citing Turner,
that the district court improperly shifted the burden of proof onto him regarding the

availability of administrative remedies. See id. at 845. Disagreeing, the Eleventh
Circuit said:
[The plaintiff] confuses the issue of whether a remedy is generally
available (i.e., a grievance procedure exists) with whether a remedy was
available to him practically speaking. Nothing in Turner dictates that
defendants initially establish this latter meaning of availability in
establishing a lack of exhaustion. Instead, Turner mandates that
“defendants bear the burden of proving that the plaintiff has failed to
exhaust his available administrative remedies,” which includes
showing that a remedy is generally available. 541 F.3d at 1082
(emphasis added). Indeed, it is difficult to conceive of how a defendant
could show that a plaintiff failed to exhaust his remedies without
showing that there was a remedy to be exhausted. In response, the
plaintiff may defeat the failure-to-exhaust argument by showing that
the general remedy was effectively unavailable to him.

Id. In Wright, the plaintiff argued that the grievance procedure at the Georgia
Department of Corrections essentially “was an unavailable dead end,” as wardens
never approved inmate grievances related to medical treatment. Id. The Eleventh
Circuit held that the plaintiff had “provided no factual support for his assertion.” Id.
Consequently, it affirmed the district court’s decision that the defendants had met
their burden of showing that the plaintiff did not exhaust available remedies and that
the plaintiff had failed to show that the remedy “was effectively unavailable to him.”
Id.
In the unpublished Blevins decision, the Eleventh Circuit applied Ross’s
unavailability exception within the context of a § 2241 petition. This court will

adopt the same approach. However, to the extent Blevins addresses the burden(s)
differently than in the published decision in Geter, the court will adhere to Geter as
to the burden-shifting analysis. Notably, Geter is factually similar to this case, as

both involve an undisputed failure by the prisoner to properly exhaust administrative
remedies, with the primary issue being “whether the grievance process was
‘available’ to [the prisoner].” 974 F.3d at 1355. Hence, as described in Geter,
“[w]hile the burden is on the [respondent] to show an available administrative

remedy, once that burden has been met, the burden of going forward shifts to the
[petitioner], who, pursuant to Turner, must demonstrate that the grievance procedure
was ‘subjectively’ and ‘objectively’ unavailable to him.” Id. at 1356 (quoting

Turner, 541 F.3d at 1085). This analysis is detailed in Part III.B.6.
5. Futility as an Exception to Administrative Exhaustion Under § 2241
In addition to citing Ross’s unavailability exceptions to exhaustion of
administrative remedies, Petitioner also argues that exhaustion would be futile. (See

Doc. # 1 at 1–2, ¶¶ 10–11.) Respondent contends that under § 2241, failure to
exhaust cannot be excused due to futility, citing two Eleventh Circuit cases: Rey v.
Warden, FCC Coleman-Low, 359 F. App’x 88 (11th Cir. 2009) (per curiam), and

McGee v. Warden, FDC Miami, 487 F. App’x 516 (11th Cir. 2012) (per curiam).
(Doc. # 11 at 5–6.) Both cases barred any futility exception to the pre-filing,
administrative-exhaustion requirement. See Rey, 359 F. App’x at 91 (“[T]he futility

exception to exhaustion is inapplicable to [the petitioner’s § 2241] claim because
exhaustion is mandatory.”); see also McGee, 487 F. App’x at 518 (“[Petitioner] has
not cited any case establishing that there is a futility exception to the requirement to

exhaust administrative remedies under § 2241 . . . .”). However, these cases were
decided prior to Santiago-Lugo’s determination that circuit precedent requiring
exhaustion of administrative remedies as a jurisdictional requirement for § 2241
petitions had been “undermined to the point of abrogation.” Santiago-Lugo v.

Warden, 785 F.3d 467, 471–75 & nn.4–5 (11th Cir. 2015). The impact of Santiago-
Lugo on the applicability of a futility exception has not yet been addressed in a
published Eleventh Circuit decision. See, e.g., Straughter v. Warden FCC Coleman-

Low, 699 F. Supp. 3d 1304, 1307–08 (M.D. Fla. Oct. 18, 2023) (declining to
categorically bar a potential futility exception based on authority cited by the
respondent that relied on the Eleventh Circuit’s pre-Santiago-Lugo understanding of
exhaustion when imposing that categorial bar in the first instance).

To date, whether there is a futility exception to the “judge-made” exhaustion
requirement applicable to § 2241 petitions is “an unsettled question in the Eleventh
Circuit after Santiago-Lugo.” Cros-Toure v. Neely, 2024 WL 2178618, at *2 (N.D.

Ala. Mar. 4, 2024), R. & R. adopted, 2024 WL 2163851 (N.D. Ala. May 14, 2024).
However, in the years since Santiago-Lugo, some district courts within the Eleventh
Circuit, including the Northern District of Alabama in Cros-Toure, have found that,

if such an exception exists, it necessitates demonstrating “extraordinary
circumstances,” with the burden of showing futility resting on the inmate. Id. (citing
Jaimes v. United States, 168 F. App’x 356, 359 (11th Cir. 2006) (per curiam) (further

citation omitted)); see also, e.g., Carrillo v. Warden FPC Pensacola, 2025 WL
1439526, at *2 (N.D. Fla. Apr. 21, 2025) (recommending dismissal of the
petitioner’s § 2241 petition because he failed to exhaust his administrative remedies
and did not present extraordinary circumstances that would justify exemption from

the exhaustion requirement), R. & R. adopted, 2025 WL 1433566 (N.D. Fla. May
19, 2025); Gomez-Feliz v. Jenkins, 2024 WL 5700925, at *2 (N.D. Ga. Dec. 16,
2024) (acknowledging that no futility exception to the exhaustion requirement under

§ 2241 had been established, but even if this exception existed, it would “apply only
in extraordinary circumstances,” and concluding that the inmate had failed to
demonstrate such circumstances (citing Jaimes, 168 F. App’x at 359)). But see
Ochoa-Vasquez v. Swaney, 2024 WL 2967269, at *4 (S.D. Ga. Apr. 23, 2024)

(“There is no futility exception applicable to the exhaustion requirement in a § 2241
proceeding.” (cleaned up)); Perez v. Joseph, 2022 WL 2181090, at *2 (N.D. Fla.
May 4, 2022) (“[T]here are grounds for doubt that a futility exception is available
on a § 2241 petition in this circuit.” (quoting Tankersley v. Fisher, 2008 WL
4371797, at *3 (N.D. Fla. Sep. 22, 2008))).

Two decisions above relied upon Jaimes, which also is a pre-Santiago-Lugo
decision. Under the precedent at the time, which considered § 2241’s exhaustion
requirement as jurisdictional, Jaimes assumed for the sake of argument that the

petitioner could claim futility. 168 F. App’x at 359. In Jaimes, the Eleventh Circuit
referenced an out-of-circuit decision upon which the petitioner relied to argue
futility, without explicitly accepting or rejecting that decision’s premise. Jaimes
noted, though, that the out-of-circuit decision stated that exceptions to the exhaustion

requirement apply only in “extraordinary circumstances” and that the petitioner
“bears the burden of demonstrating the futility of administrative review.” Id.
(quoting Fuller v. Rich, 11 F.3d 61, 62 (5th Cir. 1994) (per curiam)). Under this

standard, the Eleventh Circuit determined that the district court correctly denied the
§ 2241 petition because the petitioner failed to demonstrate extraordinary
circumstances or sufficiently explain why pursuing administrative review would be
futile. Id.

Jaimes does not provide clear guidance on the applicability of a futility
exception under § 2241 after Santiago-Lugo. Considering the shift in this circuit’s
interpretation of the exhaustion requirement post-Santiago-Lugo, it would be

inappropriate to categorically dismiss a potential futility exception based on case law
decided before Santiago-Lugo. The court will consider whether any of Petitioner’s
contentions present valid futility exceptions, as done in Cros-Toure and Gomez-

Feliz. However, this task is challenging. While some district courts in the Eleventh
Circuit recognize the potential for a futility exception, the decisions focus on why
the specific circumstances alleged do not qualify as extraordinary. In practice,

decisions addressing futility generally conclude that no extraordinary circumstances
are present, reflecting a general reluctance to excuse a prisoner’s noncompliance
with an administrative-remedy process.
6. Whether the BOP’s Administrative-Remedy Program Was Available
to Petitioner or Whether Exhaustion Would Have Been Futile

In his petition, Petitioner makes no mention of an attempt to fully exhaust the
BOP’s administrative-remedy program. Indeed, he seemingly concedes his failure
to exhaust administrative remedies. (See Doc. # 1 at 6.) In response to the petition,
raising the affirmative defense of failure to exhaust, Respondent has submitted a
declaration from an attorney advisor with the BOP. (See Doc. # 10-1 (Decl. of Jason

White).) In the declaration, the attorney advisor details the administrative-remedy
program in place at the BOP (Doc. # 10-1 at 3, ¶¶ 6–7) and states that a review of
the BOP’s SENTRY records reveals that Petitioner “has submitted 3 administrative

remedy filings with BOP” but has “failed to submit administrative remedies relating
to his claims at each of the required levels.” (Doc. # 10-1 at 3, ¶ 7.) The attorney
advisor’s declaration and the accompanying SENTRY records demonstrate that the
BOP’s administrative-remedy program is available and that Petitioner did not
complete that process.

In his reply brief, Petitioner does not challenge Respondent’s evidence that he
initiated but failed to complete the BOP’s administrative-remedy program
concerning the claims in his petition. A review of the petition, response brief, and

reply brief demonstrates that there is no dispute in the facts concerning (1) the
general availability of a grievance procedure within the BOP and (2) that Petitioner
did not properly exhaust that procedure. See Wright v. Ga. Dep’t of Corr., 820 F.
App’x 841 (11th Cir. 2020) (per curiam) (“Turner mandates that ‘defendants bear

the burden of proving that the plaintiff has failed to exhaust his available
administrative remedies,’ which includes showing that a remedy is generally
available.” (citation omitted)); Geter v. Baldwin State Prison, 974 F.3d 1348, 1355

& n.12 (11th Cir. 2020) (focusing the analysis on whether the grievance process was
available to the plaintiff because the parties agreed that the plaintiff had not properly
exhausted his administrative remedies).
The dispute here, as in Geter, is not whether Petitioner exhausted available

administrative remedies—he did not, and that point is undisputed. Rather, the focus
is on whether the BOP’s administrative-remedy program was “‘subjectively’ and
‘objectively’ unavailable to him.” Geter, 974 F.3d at 1356. Petitioner also attempts

to invoke a futility exception to § 2241’s exhaustion requirement.
As to unavailability, the Eleventh Circuit in Geter—relying on Turner—
places the burden on the prisoner to show that the grievance process was both

“subjectively” and “objectively” unavailable.14 See 974 F.3d at 1356; accord
Wright, 820 F. App’x at 845 (citing Turner and holding that once the prison official
shows a remedy is generally available, the burden shifts to the prisoner to

demonstrate that the generally available remedy was effectively unavailable to him).
As for a potential futility exception, the burden likewise would lie on Petitioner. See,
e.g., Cros-Toure v. Neely, 2024 WL 2178618, at *2 (N.D. Ala. Mar. 4, 2024).
Petitioner’s arguments focusing on unavailability and futility find no support in the

facts or law.
First, Petitioner makes several arguments, when liberally interpreted, that
arguably fall into the first category the Supreme Court in Ross identified as

triggering the unavailability exception. See Ross v. Blake, 578 U.S. 632, 643–44
(2016). He argues that the BOP “appears to misunderstand” the FSA, making it
improbable that further review through “multiple layers of BOP bureaucracy” will
rectify this issue, and that the BOP has “a pre-determined position of defying the

[FSA] through the systematic non-compliance with [the] FSA and federal court
decisions.” (Doc. # 11 at 5.) Although Petitioner couches his assertions in a futility

14 While the court follows Geter on the allocation of these burdens, the outcome would be the same
even if the burden were assigned to Respondent.
exception, it appears that he is attempting to argue that the BOP’s administrative
process “operates as a simple dead end,” with BOP officials unwilling to provide

any relief to aggrieved inmates. Ross, 578 U.S. at 643. But these arguments, even
liberally interpreted, do not suffice to show unavailability under Ross or,
alternatively, extraordinary circumstances under a potential futility exception.15

The essence of these arguments is that exhaustion should be excused because
the BOP is certain to rule against Petitioner. However, the court is unaware of any
Supreme Court or Eleventh Circuit decision recognizing this ground as a valid
exemption for unavailability or futility.16 District courts in other circuits have found

15 Whether Petitioner’s arguments for excusing exhaustion arise out of principles of unavailability
or futility is unclear, and the lines are blurred as to when an argument of futility is really one of
unavailability and vice versa.

16 Arguing that “exhaustion requirements should not be applied if pursuing remedies through the
administrative process is futile” (Doc. # 11 at 5 & n.13), Petitioner string cites cases unhelpful to
his position, including Hrycuna v. Ormond, 2019 WL 1304250, at *4 (E.D. Va. Feb. 19, 2019), R.
& R. adopted, 2019 WL 1302592 (E.D. Va. Mar. 21, 2019), which directly opposes his position.
In Hrycuna, the magistrate judge’s report and recommendation (R&R) acknowledged that the
judicially imposed exhaustion requirement in § 2241 can be excused “when pursuit of
administrative remedies would be futile.” 2019 WL 1304250, at *4. However, the R&R went on
to “[a]ccept[] that § 2241’s exhaustion requirement demands compliance with agency procedures
to whatever extent possible,” id., and it found that the petitioner had failed to comply with those
procedures:

Here, each of [the petitioner’s] appeals was rejected because of specific procedural
deficiencies. In each instance, [the petitioner] had the opportunity to resubmit his
appeal with corrections or an explanation of the deficiency. He never attempted to
do so but instead filed suit in federal court seeking habeas relief. Excusing the
exhaustion requirement in this case would render the BOP disciplinary process a
dead letter and invite future disregard of its requirements.

Id. at *5.
that the BOP’s administrative remedy process is not futile “simply because a
prisoner anticipates he will be unsuccessful in his administrative appeals.” Williams

v. Warden, Allenwood-Low, 2024 WL 4204277, at *2 (M.D. Pa. Sep. 16, 2024)
(collecting cases). Additionally, as found by a district court in the Eastern District
of New York, the BOP’s prior rejection of similar claims did not render exhaustion

futile, since it was possible for precedent to be overruled and the BOP’s general
counsel has the authority to change agency policy. See Lallave v. Martinez, 609 F.
Supp. 3d 164, 180 (E.D.N.Y. 2022) (finding that futility could not be presumed
solely based on previous unfavorable decisions, as it “was theoretically possible that

the precedent would be overruled” (collecting cases)). Hence, other district courts
have required more than a mere prediction of an adverse outcome to excuse
exhaustion on the grounds of futility. This reasoning is particularly relevant to

Petitioner’s argument here, especially given the lack of factual support for his
conclusion.
Furthermore, Petitioner’s arguments expressing pessimism about the
administrative outcome closely resemble those rejected in Jaimes and Wright. See

Jaimes v. United States, 168 F. App’x 356 (11th Cir. 2006) (per curiam); Wright v.
Ga. Dep’t of Corr., 820 F. App’x 841 (11th Cir. 2020) (per curiam). In Jaimes, the
petitioner contended that pursuing administrative remedies would be futile, as he

believed the BOP would not rectify his concerns about sentencing credit without
judicial intervention. See 168 F. App’x at 359. Rejecting this argument, the
Eleventh Circuit reasoned that the petitioner “d[id] not adequately explain why

administrative review would prove futile.” Id. In Wright, the § 1983 plaintiff
claimed that the grievance procedure at the Georgia Department of Corrections
essentially “was an unavailable dead end,” as wardens never approved inmate

grievances related to medical treatment. 820 F. App’x at 845. However, the
Eleventh Circuit found that the plaintiff had “provided no factual support for his
assertion.” Id. Consequently, the Eleventh Circuit affirmed the district court’s
decision that the defendants had met their burden of showing that the plaintiff did

not exhaust available administrative remedies and that the plaintiff had failed “to
defeat” that showing. Id.
Similarly, as in Jaimes and Wright, Petitioner speculates, without a factual

basis, that he will not receive a favorable administrative ruling. He offers only
conclusory statements asserting nothing more than his mere belief that exhaustion
of administrative remedies would be futile. See Higginbottom v. Carter, F.3d 1259,
1261 (11th Cir. 2000) (holding that an inmate’s belief that administrative procedures

are futile or needless does not excuse exhaustion in the context of the PLRA); see
also Martin v. Neely, 2024 WL 4521942, at *1 (N.D. Ala. Sept. 19, 2024) (“[Section
2241 petitioner’s] belief that exhaustion would have been futile is entirely

conclusory and thus insufficient to excuse her failure to exhaust.”), R. & R. adopted,
2024 WL 4520939 (N.D. Ala. Oct. 17, 2024); Alanis v. Neely, 2024 WL 532338,
at *1 (N.D. Ala. Jan. 19, 2024) (finding that the petitioner’s conclusory futility

arguments were insufficient due to the absence of a showing of extraordinary
circumstances or claimed barriers to the remedy process (citation omitted)), R. & R.
adopted, 2024 WL 520021 (N.D. Ala. Feb. 9, 2024). It is not possible to find futility

in this case, as Petitioner neither completed the administrative remedy process nor
demonstrated any extraordinary circumstances that would justify his failure to do so.
Second, Petitioner argues that pursuing the BOP’s administrative-remedy
program would be futile and result in “irreparable harm” to him, citing concerns

about his RDAP admission. (Doc. # 1 at 2, ¶ 12; Doc. # 11 at 4.) However, by
getting all the way to the BP-10 level but not completing the BOP’s administrative-
remedy program prior to seeking judicial intervention, Petitioner undermines his

argument for excusing the exhaustion requirement. Additionally, as previously
discussed, the BOP’s decisions regarding RDAP placements and awards are not
subject to judicial review. See Cook v. Wiley, 208 F.3d 1314, 1319 (11th Cir. 2000)
(citing 18 U.S.C. § 3625(b)).

Furthermore, the offending FSA Time Credit Assessment, which Petitioner
relies upon to support his arguments, is dated February 26, 2025. (Doc. # 1-1 at 2.)
Under a standard exhaustion schedule, the administrative-remedy process could

extend up to 160 days at its maximum (20 days for filing the BP-9 request; 20 days
for the warden’s response; 20 days for filing the BP-10 appeal; 30 days for the
regional director’s response; 30 days for filing the BP-11 appeal; and 40 days for the

general counsel’s response). See 28 C.F.R. § 542.10 et seq. On that timeline, it
appears that exhaustion could have been completed by early August 2025 at the
latest. While extensions or justified delays can lengthen that process, see Davis v.

Warden, FCC Coleman-USP I, 661 F. App’x 561, 562 (11th Cir. 2016), it is
challenging to envision a realistic timeline where exhaustion would have been
unfeasible. Instead of completing all steps of the BOP’s administrative-remedy
program, he filed an unexhausted petition in April 2025. (See Doc # 1 at 1, 6.) Based

on these facts, construed favorably to Petitioner, his failure to fully exhaust
undermines both his claim of futility and his argument that the risk of irreparable
harm justifies bypassing the exhaustion requirement.

Third, Petitioner argues that his failure to exhaust administrative remedies
should be excused because his § 2241 petition involves a question of statutory
interpretation. (Doc. # 11 at 6.) This contention does not fit the criteria for
unavailability outlined in Ross v. Blake, 578 U.S. 632 (2016). Instead, Petitioner

asserts that “multiple circuits have recognized that even prudential exhaustion
requirements must yield to cases like this one where the challenge involves statutory
interpretation rather than factual disputes.” (Doc. # 1 at 2, ¶ 13; Doc. # 11 at 6.) In

support of this assertion, Petitioner cites two cases. The first case, Geiger v. United
States, does not appear to exist as cited by Petitioner.17 The second case, Elwood v.
Jeter, 386 F.3d 842 (8th Cir. 2004),18 provides no support for Petitioner’s contended

statutory-interpretation exception to the exhaustion requirement. The Elwood
petitioner’s failure to exhaust his administrative remedies was excused because the
government waived the requirement when it conceded that “[the petitioner’s]

continued use of the grievance procedure to contest the validity of the BOP’s new
policy would be futile,” not because his case involved a question of statutory
interpretation. Id. at 844 n.1. Respondent in this case did not waive the requirement
that Petitioner exhaust his administrative remedies before filing, as evidenced by his

raising the issue of Petitioner’s failure to exhaust in his response. (See Doc. # 10 at
7–11.) Additionally, in a recent decision examining a § 2241 petitioner’s argument
that exhaustion is not requirement when a claim presents a question of statutory

interpretation, a district court in the Northern District of Alabama said, “[T]he court
is unable to locate any Eleventh Circuit precedent recognizing an exception to the

17 In his petition, Petitioner cites Geiger as 502 F.2d 1290, 1292–93 (8th Cir. 1974). (Doc. # 1 at
2, ¶ 13.) In his reply brief, Petitioner cites Geiger as 502 F.2d 1290, 1292 (8th Cir. 1974). (Doc.
# 11 at 6 n.15.) A search for the case at the citations provided by Petitioner turns up a case called
United States v. Ingham, 502 F.2d 1287 (5th Cir. 1974), which has nothing to do with the
administrative-exhaustion requirement or any potential exceptions thereto. Independent research
turned up a case brought by a pro se plaintiff in the Middle District of Pennsylvania, but it analyzes
exhaustion in the context of the Federal Tort Claims Act and does not mention a statutory-
interpretation exception. See generally Geiger v. United States, 2023 WL 3136405 (M.D. Pa. Apr.
27, 2023).

18 In both his petition and his reply brief, Petitioner incorrectly cites the Elwood case as Elwood v.
Jeter, 368 F.3d 842, 844 n.1 (8th Cir. 2004) (emphasis added). (Doc. # 1 at 2, ¶ 13; Doc. # 11 at 6
n.15.)
administrative exhaustion requirement for a claim that presents a question of
statutory interpretation.” Nuckles v. Yeager, 2025 WL 1490057, at *2 (N.D. Ala.

May 22, 2025). Petitioner’s arguments for excusing exhaustion based on statutory
interpretation lack supporting authority and misinterpret the cited cases.
Fourth and finally, Petitioner cites additional case law to support his futility

argument generally (Doc. # 1 at 1–2, ¶ 11; Doc. # 11 at 5 n.13), but the cited cases
fail to substantiate his position. In Woodford v. Ngo, the United States Supreme
Court held that under the PLRA, “[e]xhaustion is no longer left to the discretion of
the district court, but is mandatory.”19 548 U.S. 81, 85 (2006). As for Putnam v.

Winn, the court recognized that if a court has habeas jurisdiction, “a common law
exhaustion rule applies, which can be waived if exhaustion would be futile.” 441 F.
Supp. 2d 253, 255 (D. Mass. 2006). However, significantly, the Putnam court went

on to say that “[t]he petitioner has not demonstrated he properly exhausted his
administrative remedies, but all parties agree that exhaustion would be futile here
and therefore waivable.” Id. (emphasis added). Finally, the petitioner in United
States v. Basciano initiated the administrative review process and submitted multiple

requests for administrative remedies before seeking habeas relief.20 See 369 F. Supp.

19 Petitioner, however, cites the concurring opinion in which Justice Breyer recognizes the “well-
established exceptions to exhaustion found in administrative law.” Woodford, 548 U.S. at 103
(Breyer, J., concurring) (collecting cases). (See Doc. # 1 at 1, ¶ 11; Doc. # 11 at 5 n.13.)
20 In his reply brief, Petitioner cites another case in addition to Woodford, Putnam, and Basciano:
Hrycuna v. Ormond, 2019 WL 1304250 (E.D. Va. Feb. 19, 2019). (Doc. # 11 at 5 n.13.) For
2d 344, 348–49 (E.D.N.Y. 2005). This is in stark contrast to Petitioner here who did
not attempt to initiate, let alone exhaust, the administrative-remedy process.

Petitioner’s reliance on Woodford, Putnam, and Basciano fails to substantiate a
futility argument.
Based on the foregoing, Respondent has met his burden to show that Petitioner

failed to exhaust properly the BOP’s available administrative-remedy program.
Petitioner failed to show that this remedy was effectively unavailable to him or that
availing himself of this remedy would be futile. Therefore, Petitioner’s § 2241
petition must be dismissed for failure to exhaust administrative remedies.

IV. CONCLUSION
Subject matter jurisdiction is lacking because Petitioner’s petition is not ripe.
Alternatively, Petitioner failed to properly exhaust his available administrative

remedies before filing a § 2241 petition. Petitioner’s arguments that the BOP’s
administrative-remedy program is unavailable to him or that exhaustion is futile are
unavailing. Petitioner has provided no reason, factual or otherwise, to justify a
finding that the BOP’s administrative-remedy program is unavailable to him.

Additionally, assuming futility is an exception to exhaustion under § 2241, Petitioner
has not presented extraordinary circumstances demonstrating the futility of

further discussion as to why Petitioner’s reliance on Hrycuna fails to substantiate his futility
arguments, see supra note 16.
administrative review. Petitioner’s § 2241 petition is premature until such time as
he exhausts the BOP’s administrative-remedy program.

Based on the foregoing, it is ORDERED as follows:
(1) Respondent’s construed Rule 12(b)(1) motion to dismiss for lack of
subject matter jurisdiction is GRANTED;

(2) Respondent’s construed Rule 12(b) motion to dismiss for failure to
exhaust administrative remedies is GRANTED in the alternative; and
(3) The Petition for Writ of Habeas Corpus under 28 U.S.C. § 2241 is
DISMISSED without prejudice.

Final Judgment will be entered separately.
DONE this 2nd day of December, 2025.
/s/ W. Keith Watkins
UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11212980. Public record. Not legal advice.