Unpublished Disposition, 868 F.2d 1273 (9th Cir. 1989)

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U.S. Court of Appeals for the Ninth Circuit - 868 F.2d 1273 (9th Cir. 1989)

Preston PARNELL, Petitioner-Appellant,v.UNITED STATES PAROLE COMMISSION, Respondent-Appellee.

No. 87-6339.

United States Court of Appeals, Ninth Circuit.

Submitted*  Dec. 20, 1988.Decided Feb. 6, 1989.

Before GOODWIN, Chief Circuit Judge, and BARNES and KILKENNY, Senior Circuit Judges.


MEMORANDUM** 

Preston Parnell appeals pro se the district court's dismissal of his 28 U.S.C. § 2241 petition for a writ of habeas corpus for failure to exhaust administrative remedies. For the reasons set forth below, we remand for further proceedings.

Parnell concedes that he had not exhausted his available administrative remedies at the time he filed the instant petition. Because the exhaustion of administrative remedies is a prerequisite to seeking habeas relief under section 2241, see Tatum v. Christensen, 786 F.2d 959, 964 (CA9 1986) (per curiam), the district court properly dismissed the appellant's petition. See Ruviwat v. Smith, 701 F.2d 844, 845 (CA9 1983) (per curiam).

With that said, however, we note that the National Appeals Board's affirmance of the Commission's ruling against Parnell constituted an effective exhaustion of the appellant's administrative remedies. Since that exhaustion occurred subsequent to the district court's dismissal we could, in the interest of judicial economy, reach the legal merits of Parnell's petition and grant whatever relief to which the appellant might be entitled. Cf., Schwartzmiller v. Gardner, 752 F.2d 1341, 1344-45 (CA9 1984) (where exhaustion of remedies in section 2254 petition occurred subsequent to district court's dismissal for failure to exhaust, appellate court entitled to grant appropriate relief on review). However, because questions of fact are inextricably interwoven with the claims asserted here, we believe that the only appropriate course of action is to remand to the district court for its consideration of the merits of Parnell's petition.

With respect to the appellant's post-judgment motions for injunctive relief and reconsideration, we hold that they are not properly before us and therefore decline to address them. See Alaniz v. California Processors, Inc., 690 F.2d 717, 719 (CA9 1982) (per curiam) (nonappealability of magistrate's ruling where no indication that district court adopted ruling); Meehan v. County of Los Angeles, 856 F.2d 102, 105 (CA9 1988) (requirements of specificity for effective notice of appeal). We also decline to address the appellant's Motion to Present New Evidence for the reason that it is more properly directed to the attention of the district court.

Accordingly, we REMAND for further proceedings consistent with the above, the parties to bear their own costs.

 *

The panel unanimously finds this case suitable for submission on the briefs and record without oral argument per FRAP 34(a) and CA9 Rule 34-4

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this Circuit except as provided by CA9 Rule 36-3