Judge Jesse Furman
Atkinson is serving consecutive 151-month terms. His petition for habeas relief asserted that his four-year detention in the Metropolitan Correctional Center’s Special Housing Unit violated his Fifth Amendment due process rights. Warden Linaweaver countered that Atkinson’s SHU detention resulted from disciplinary infractions and the threat he poses to others. She claimed Atkinson received all process due under the Fifth Amendment and Bureau of Prisons (BOP) procedures. The court held Atkinson failed to exhaust administrative remedies. He did not satisfy the four-step procedure in BOP’s Administrative Remedy Program. He did not appeal the BOP Regional Director’s denial of his claims to its General Counsel. Discussing United States v. Basciano, the court rejected Atkinson’s futility argument, and noted the government did not waive the non-exhaustion defense. Nor did Atkinson show prejudice by complying with the BOP’s Administrative Remedy Program. After the Regional Director denied his claims, Atkinson waited almost a year before seeking habeas relief. Thus, under Rosenthal v. Killian he “had more than enough time to exhaust his administrative remedies and his own delay does not excuse his failure to do so.”
