Rogge v. Miles

* 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this opinion should not be published and is not precedent except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
June 10, 2005
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 04-40422
Summary Calendar
LESLIE IBSEN ROGGE,
Petitioner-Appellant,
versus
ROBERT MILES, Warden,
Respondent-Appellee.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:03-CV-359-MAC-WCR
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Before DAVIS, SMITH and DENNIS, Circuit Judges.
PER CURIAM:*
Leslie Ibsen Rogge, federal prisoner # 13915-004, appeals
the district court’s denial of his 28 U.S.C. § 2241 petition.
Ibsen challenged the determination by the Bureau of Prisons (BOP)
that he had escaped from incarceration, rather than being
inadvertently released, and therefore that he was not entitled to
credit for the 3884 days he was out of custody. Rogge has not
established that the district court erred in determining that the
BOP properly found that Rogge had escaped and was not entitled to

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No. 04-40422
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the credit. See Royal v. Tombone, 141 F.3d 596, 599 (5th Cir.
1998); Phillips v. Dutton, 378 F.2d 898, 898 (5th Cir. 1967).
Rogge also contends that the BOP denied him due process by
failing to give him notice and provide him with a hearing before
deciding not to award him the credit for the time he spent out of
custody. Because Rogge failed to exhaust his administrative
remedies on this ground, he is not entitled to relief. See
United States v. Wilson, 503 U.S. 329, 335-36 (1992). Even if
Rogge had exhausted the claim, he has not demonstrated a due
process violation. Cf. Wolff v. McDonnell, 418 U.S. 539, 557,
561 (1974); Malchi v. Thaler, 211 F.3d 953, 957-58 (5th Cir.
2000). The judgment of the district court is thus AFFIRMED.

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