Payne v. Maye et al
Filing
5
ORDER ENTERED: The petition for habeas corpus is dismissed due to petitioner's failure to proeprly exhaust administrative grievances. Petitioner's motion 3 for an extension of time is denied as moot. Signed by Senior District Judge Richard D. Rogers on 1/30/2013. (Mailed to pro se party David Payne by regular mail.) (smnd)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
DAVID PAYNE,
Petitioner,
v.
CASE NO. 12-3232-RDR
CLYDE MAYE, et al.,
Respondents.
O R D E R
This matter is a petition for habeas corpus filed pursuant to
28 U.S.C. § 2241. Petitioner proceeds pro se and submitted the full
filing fee.
It is well-established that the exhaustion of administrative
remedies is a prerequisite to the pursuit of federal habeas corpus
pursuant to § 2241. See Williams v. O’Brien, 792 F.2d 986, 987 (10th
Cir. 1986)(per curiam). The exhaustion requirement is met when a
prisoner completes the four-tier administrative grievance procedure
available to a prisoner in federal custody, commencing with a request
for informal resolution and followed by administrative grievances
addressed at the institutional, regional and national levels. See 28
C.F.R. §§ 542.13-.18. By its earlier order, the court directed
petitioner to demonstrate his use of the administrative grievance
procedures before commencing this action.
Petitioner
filed a response
that includes a copy of the
resolution of his grievance filed at the national level (Doc. 4). That
document shows that the appeal was rejected as untimely. The document
notes that petitioner could provide a staff memo on Bureau of Prisons
letterhead to explain any mitigating circumstances concerning the
timeliness of the submission, but there is no indication that
petitioner did so.
Because it does not appear that petitioner has satisfied the
exhaustion requirement, the court must dismiss this matter for lack
of exhaustion.
IT IS, THEREFORE, BY THE COURT ORDERED the petition for habeas
corpus is dismissed due to petitioner’s failure to properly exhaust
administrative grievances.
IT IS FURTHER ORDERED petitioner’s motion for an extension of
time (Doc. 3) is denied as moot.
A copy of this order shall be transmitted to the petitioner.
IT IS SO ORDERED.
DATED:
This 30th day of January, 2013, at Topeka, Kansas.
S/ Richard D. Rogers
RICHARD D. ROGERS
U.S. Senior District Judge
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