Steve Austin, Jr. v. Federal Bureau of Prison

Filing

Opinion issued by court as to Appellant Steve Austin, Jr.. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam.

Case: 13-10089

Date Filed: 09/12/2013

Page: 1 of 3

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-10089
Non-Argument Calendar
________________________
D.C. Docket No. 0:12-cv-60714-KMW

STEVE AUSTIN, JR.,
Petitioner - Appellant,
versus
FEDERAL BUREAU OF PRISONS,
Designation & Sentencing Center,
Respondent - Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(September 12, 2013)
Before DUBINA, PRYOR and KRAVITCH, Circuit Judges.
PER CURIAM:

Case: 13-10089

Date Filed: 09/12/2013

Page: 2 of 3

Steve Austin, Jr., appeals the district court’s dismissal of his 28 U.S.C.
§ 2241 petition for failure to exhaust administrative remedies. After thorough
review, we affirm.
In 2011, while he was on federal supervised release, Austin was convicted in
Florida state court of burglary and grand theft. A federal district court revoked his
supervised release and sentenced him to a term of federal imprisonment
consecutive to his state sentence. In 2012, while still serving his state sentence,
Austin filed a § 2241 petition alleging that his federal sentence began when he was
temporarily transferred to federal custody for supervised release revocation
proceedings and, consequently, he was entitled to credit against his federal
sentence for time spent in state custody. The district court found Austin failed to
exhaust his administrative remedies and dismissed the petition without prejudice.
This is Austin’s appeal.
“We review de novo the district court’s denial of habeas relief under
§ 2241.” Skinner v. Wiley, 355 F.3d 1293, 1294 (11th Cir. 2004). Prisoners
seeking § 2241 relief must exhaust their administrative remedies. Id. at 1295. A
prisoner may “seek formal review of an issue relating to any aspect of his/her own
confinement,” including credit due for time served, under the BOP’s
Administrative Remedy Program. 28 C.F.R. § 542.10(a); see also United States v.
Lucas, 898 F.2d 1554, 1555-56 (11th Cir. 1990).
2

Case: 13-10089

Date Filed: 09/12/2013

Page: 3 of 3

Austin concedes that he did not exhaust his administrative remedies before
filing his § 2241 petition but argues he should be excused from pursuing them.
Because he was in state custody and the BOP’s administrative process is
unavailable to “inmates confined in . . . non-federal facilities,” Austin did not seek
redress through the BOP’s process. 1 See 28 C.F.R. § 542.10(b). Austin urges that
he should be excused from the exhaustion requirement, but we lack authority to
excuse him because the requirement is jurisdictional. See Gonzalez v. United
States, 959 F.2d 211, 212 (11th Cir. 1992). The district court therefore correctly
dismissed Austin’s § 2241 petition.
AFFIRMED.

1

It appears that Austin is now in federal custody serving his federal sentence. He is therefore
now free to seek redress under the BOP’s administrative process.
3