Phillip Martinez, Petitioner-appellant, v. United States Parole Commission; W.h. Seifert, Warden,metropolitan Detention Center, Respondents-appellees, 46 F.3d 1143 (9th Cir. 1995)

MEMORANDUM^** 

Phillip Martinez, a federal prisoner, appeals pro se from the district court's dismissal of two 28 U.S.C. § 2241 petitions. Martinez contends the district court erred when it dismissed his petitions, without prejudice, for failure to exhaust administrative remedies. We have jurisdiction pursuant to 28 U.S.C. § 2253. We review de novo. Grady v. Crabtree, 958 F.2d 874, 874 (9th Cir. 1992) (per curiam). We affirm in part, vacate in part and remand.

Before the merits of a 28 U.S.C. § 2241 petition can be addressed, a federal prisoner must exhaust available administrative remedies. Martinez v. Roberts, 804 F.2d 570, 571 (9th Cir. 1986). This court, however, may grant relief, if available remedies not exhausted at the time the petition was filed, are exhausted by the time this court considers the appeal. See Schwartzmiller v. Gardner, 752 F.2d 1341, 1344-45 (9th Cir. 1984).

In 1975, at age eighteen, Martinez was convicted of first degree murder stemming from his involvement in a drug transaction where his cohort shot and killed a man from whom he and Martinez were purchasing narcotics. Although sentenced to life imprisonment, Martinez was paroled in late 1989 or early 1990. On December 21, 1994, Martinez was arrested for violating the terms of his federal parole based upon a state misdemeanor assault charge which reportedly has since been dismissed. Martinez has remained in federal custody since December 21, 1994.

On January 28, 1994, Martinez filed his first petition (94-00633) challenging the Parole Commission's denial of bail pending the parole revocation hearing. On March 15, 1994, Martinez filed a motion to file an amended petition and, alternatively, to dismiss his first petition. On April 28, 1994, the district court granted Martinez's motion for voluntary dismissal without prejudice. Martinez filed a timely notice of appeal on May 11, 1994.¹  On appeal, this case was assigned case number 94-55678.

On April 29, 1994, the district court treated Martinez's amended petition as a separate application for writ of habeas corpus (94-02809). On May 5, 1994, the district court dismissed this petition without prejudice because the failure to exhaust administrative remedies was apparent on its face. Martinez filed a timely notice of appeal on May 17, 1994. On appeal, this case was assigned case number 94-55778.² 

On August 9, 1994, this court granted Martinez's motion to consolidate the two appeals. In its brief, the government informs the court that during the pendency of this appeal Martinez exhausted his claims before the Parole Commission and he remains in federal custody pursuant to the revocation of his parole.

Because the district court granted Martinez's motion for voluntary dismissal of his petition in case number 94-00633, the order granting that motion is affirmed.

Because Martinez conceded in case number 94-02809 that administrative remedies had not been exhausted, the district court's order of dismissal was entirely proper at the time it was entered. See Martinez, 804 F.2d at 571. However, it lies within the discretion of this court to give relief if available remedies, not exhausted at the time the petition was filed, are exhausted by the time this court considers the appeal. See Schwartzmiller, 752 F.2d at 1344-45. As it is now apparent that available remedies have been exhausted, we vacate the district court's order of dismissal in case number 94-02809 and remand for consideration of Martinez's claims on their merits. Id.

The judgment entered in District Court No. 94-00633 (Court of Appeals No. 94-55678) is AFFIRMED. The judgment entered in District Court No. 94-02809 (Court of Appeals No. 94-55778) is VACATED and the case is REMANDED for further proceedings consistent with this opinion.