Unpublished Disposition, 886 F.2d 334 (9th Cir. 1988)

MEMORANDUM^** 

Jesse Willard ("Willard"), a federal prisoner, appeals pro se the district court's denial of his motion for reconsideration of the district court's dismissal of his petition for a writ of habeas corpus for failure to exhaust administrative remedies. We have jurisdiction under 28 U.S.C. § 1291 and we affirm.

BACKGROUND

In December, 1968, Willard was convicted in United States District Court and sentenced to a 25-year prison term. Willard was released on parole on June 14, 1978. On March 18, 1981, Willard committed an armed robbery, for which he was convicted on March 26, 1982. Subsequently, after being given notice and a hearing, Willard's parole was revoked due to the conviction.

Willard's habeas petition is based on his claim that he is entitled to credit against his sentence for "street time," time spent on parole during good behavior. He claims he is entitled to street time credit because the parole violation warrant application, issued by the United States Parole Commission (the "Commission") to notify Willard that his parole might be revoked, did not provide specific notice that his street time was subject to forfeiture as is required by 18 U.S.C. § 4213(c) (3) and by this court's holdings in Vanes v. United States Parole Comm'n, 741 F.2d 1197, 1202 (9th Cir. 1984), and Raines v. United States Parole Comm'n, 829 F.2d 840, 843 (9th Cir. 1987).

On January 5, 1988, the district court dismissed Willard's habeas petition without prejudice for failure to exhaust administrative remedies because Willard did not pursue an appeal of the decision not to give credit for street time with the National Appeals Board as required by 28 C.F.R. Sec. 2.26. On March 8, 1988, Willard served on the district court a motion for reconsideration, alleging that he filed an administrative appeal with the National Appeals Board on January 13, 1988, and had not received a response within the 60-day period required by 28 C.F.R. Sec. 2.26(c).¹  This motion was filed on March 14, 1988.

On March 17, 1988, the district court denied Willard's motion because (1) the motion was served on March 8, prior to expiration of the 60-day period, (2) Willard did not provide the court with documentation supporting his assertion that a new appeal was filed on January 13, and (3) Willard did not establish that his administrative remedies had been exhausted prior to the time he filed his habeas petition nor did he demonstrate that there were extraordinary circumstances which relieved him of the necessity of exhausting his remedies. The National Appeals Board sent Willard a letter on March 17, notifying Willard that his appeal had not been accepted because it was filed outside of the 45-day time limit for appeal from a decision by a Regional Commissioner.

DISCUSSION

I. Administrative Remedies Were Not Exhausted Prior to Filing the Habeas Petition

Willard contends that the district court erred in denying his motion to reconsider the dismissal of his habeas petition because he now has exhausted his administrative remedies. This contention is without merit.

It seems that Willard has exhausted his federal administrative remedies because his appeal to the National Appeals Board has been denied and the regulations do not provide for any further appeals.²  It is well-settled, however, that "exhaustion of administrative remedies is a prerequisite to the filing of a habeas corpus petition in parole matters." Green v. Christiansen, 732 F.2d 1397, 1400 (9th Cir. 1984) (emphasis added). See also Martinez v. Roberts, 804 F.2d 570, 571 (9th Cir. 1986) ("Federal prisoners are required to exhaust their federal administrative remedies prior to bringing a petition for a writ of habeas corpus in federal court." (emphasis added)); Tatum v. Christensen, 786 F.2d 959, 964 (9th Cir. 1986) (dismissal of habeas petition involving claim that government failed to specify in warrant that conviction could result in forfeiture of street time was correct because claim had not been presented first to Parole Commission). Thus, even if Willard's motion had not been served prematurely and Willard had provided documentation regarding his appeal before the National Appeals Board, the district court's denial of the motion would have been correct. The proper procedure is for Willard to file a new habeas petition once he has exhausted his administrative remedies, rather than filing a motion for reconsideration of the previous dismissal.

II. No Exception to the Exhaustion Requirement is Present Here

Exhaustion of administrative remedies is not required when pursuit of the remedies would injure the plaintiff irreparably, when the remedies are inadequate or futile, or when the administrative proceedings are void. United Farm Workers v. Arizona Agric. Employment Relations Bd., 669 F.2d 1249, 1253 (9th Cir. 1982). Willard contends that even if he has not yet exhausted his administrative remedies, he should not be required to do so because he would suffer irreparable injury. This contention also lacks merit.

In some habeas cases involving an incarcerated prisoner, continued confinement while the prisoner pursues administrative remedies may result in irreparable injury. In this case, however, success on Willard's underlying claim will not result in his release from prison at this time. Willard is serving a twenty-five year sentence which began in December, 1968. He is due to be released from prison on this conviction in December, 1993. He claims entitlement to approximately three years of street time. Thus, the earliest date on which Willard could obtain release from prison with credit for his street time is December, 1990. There still is ample time for Willard to pursue a new habeas petition prior to the earliest date on which he could be released. Thus, enforcement of the exhaustion requirement will not cause Willard irreparable injury.

CONCLUSION

Willard failed to exhaust his administrative remedies before filing his habeas petition. He also failed to demonstrate that he will suffer irreparable injury if the exhaustion requirement is enforced. Therefore, the district court's denial of the motion for reconsideration of its decision to dismiss Willard's habeas petition is

AFFIRMED.