however, this court is presented with the question of mootness. This mootness issue is not to be confused with the separate question of jurisdiction. Jurisdiction is a statutory question, focusing on whether Perry has satisfied the "in custody" requirement of 28 U.S.C. § 2241(c). Mootness, on the other hand, is of constitutional dimension, related to the article III "case or controversy" requirement.
Perry has been released and is currently serving his probation sentence. Because probation constitutes "custody" for purposes of a habeas corpus action, Perry has satisfied the jurisdictional prerequisite of section 2241(c). See Drollinger v. Milligan, 552 F.2d 1220, 1224 (7th Cir. 1977); Hahn v. Burke, 430 F.2d 100, 102 (7th Cir. 1970), cert. denied, 402 U.S. 933, 91 S. Ct. 1522, 28 L. Ed. 2d 868 (1971); see also United States v. Condit, 621 F.2d 1096, 1098 (10th Cir. 1980). Insofar as Perry's habeas petition requests immediate release, his subsequent discharge from prison moots this case to that extent. Tyars v. Finner, 709 F.2d 1274, 1279 (9th Cir. 1983). But the revocation of statutory good time is not inconsequential by virtue of Perry having completed his term of incarceration. The decision to revoke statutory good time directly affects the commencement and expiration of Perry's probation sentence. As a result, Perry retains a personal stake in the outcome of the proceedings. See Martin v. Luther, 689 F.2d 109, 112 (7th Cir. 1982). Thus, there is a sufficiently justiciable controversy between the parties.
Nonetheless, respondent contends that Perry's petition should be denied because he has failed to exhaust his administrative remedies. The Seventh Circuit has ruled that a federal prisoner cannot bring a habeas corpus action until he has exhausted his administrative remedies within the prison system. Del Raine v. Carlson, 826 F.2d 698, 703 (7th Cir. 1987); Sanchez v. Miller, 792 F.2d 694, 697 (7th Cir. 1986), cert. denied, 479 U.S. 1056, 93 L. Ed. 2d 984, 107 S. Ct. 933 (1987). The Bureau of Prisons has a formal system of administrative review under which prisoners such as Perry may appeal an adverse decision of the disciplinary hearing officer. See 28 C.F.R. §§ 542.10 to 542.16 (1988). Perry does not deny that he has failed to exhaust his administrative remedies. On two separate occasions, he simply chose not to appeal the hearing officer's findings with respect to the alleged escape. The court is not unaware of the fact that the administrative process is now unavailable to Perry because an administrative appeal would be untimely. See id. § 542.15 (appeal must be filed within twenty days of hearing officer's decision). Unfortunately for Perry, his personal decision to forego an administrative appeal constitutes a waiver. Perry has not shown cause for his failure to appeal. Murray v. Carrier, 477 U.S. 478, 91 L. Ed. 2d 397, 106 S. Ct. 2639 (1986); Wainwright v. Sykes, 433 U.S. 72, 53 L. Ed. 2d 594, 97 S. Ct. 2497 (1977). Unable to demonstrate that his decision to file a habeas claim (and abandon his right to appeal) was other than a conscious choice, Perry is foreclosed from complaining of the unavailability of administrative remedies.
Accordingly, this court denies Perry's petition for a writ of habeas corpus.
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