Unpublished Disposition, 884 F.2d 1394 (9th Cir. 1989)

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US Court of Appeals for the Ninth Circuit - 884 F.2d 1394 (9th Cir. 1989)

Clovis Carl GREEN, Jr., Petitioner-Appellant,v.Peter CARLSON, Warden, Respondent-Appellee.

No. 88-15025.

United States Court of Appeals, Ninth Circuit.

Submitted July 26, 1989.* Decided Sept. 6, 1989.

Before CHOY, ALARCON and CANBY, Circuit Judges.


Clovis Green, a federal prisoner, appeals pro se the Arizona district court's denial of his 28 U.S.C. § 2241 habeas corpus petition. We affirm.

Jurisdiction Over Section 2255 Claim

Green contends that the Arizona district court should have considered the merits of his claims attacking the validity of his conviction in federal district court in Texas for mailing threatening letters, because he demonstrated that his section 2255 remedy was ineffective and inadequate. This contention lacks merit.

A motion to vacate sentence under 28 U.S.C. § 2255 is the appropriate vehicle for collaterally challenging a federal conviction. A 28 U.S.C. § 2241 habeas petition raising such claims properly is dismissed for lack of jurisdiction if the petition is not filed in the sentencing court. 28 U.S.C. § 2255; Tripati v. Henman, 843 F.2d 1160, 1162-63 (9th Cir. 1988). The court that sentenced Green was the district court in Texas. Therefore, the Arizona district court correctly ruled that Green's proper remedy was to file a section 2255 motion in Texas.

Green argues, however, that a section 2255 motion in the sentencing court is an inadequate and ineffective remedy. Green alleged below that his section 2255 motion had been pending for 13 months1  and that the Texas court had not reached a decision or held an evidentiary hearing on the motion. He also alleged that the sentencing judge was biased against him.2  Neither of these considerations warrants the conclusion that Green's section 2255 motion would not be an adequate or effective remedy for attacking the validity of his conviction. See Tripati, 843 F.2d at 1163 (alleged judicial bias does not demonstrate inadequacy or ineffectiveness because petitioner has "remedy available by way of a motion for recusal or disqualification of biased judges that would make a section 2255 motion ... an effective remedy even if his allegations of bias are true"); Madsen v. Hinshaw, 237 F.2d 370, 371 (9th Cir. 1956) (district court judge's "prolonged and stubborn refusal" to permit filing of a section 2255 motion did not render the remedy inadequate or ineffective because petitioner could use mandamus to compel the court to act).

Failure to Exhaust Administrative Remedies

Green contends that the district court erred in dismissing his 28 U.S.C. § 2241 habeas claims for failure to exhaust administrative remedies. This contention also lacks merit.

Federal prisoners are required to exhaust their federal administrative remedies prior to bringing a petition for habeas corpus in federal court. Martinez v. Roberts, 804 F.2d 570, 571 (9th Cir. 1986); Tatum v. Christensen, 786 F.2d 959, 964 (9th Cir. 1986). Federal regulations provide a mechanism whereby federal prisoners can administratively appeal both parole decisions and complaints relating to any aspect of imprisonment. See 28 C.F.R. Secs. 2.26, 542.10 et seq. (1988). Green makes it clear in his habeas petition that he deliberately did not pursue his available administrative remedies. Green argues, however, that he did not need to exhaust his administrative remedies because (1) he and other prisoners have been denied administrative relief in the past when raising the same claims and issues, and (2) he will suffer irreparable harm because FCI-Phoenix is violating his first and eighth amendment rights.

There is no express statutory requirement that federal prisoners exhaust administrative remedies before filing habeas petitions under section 2241. See Anderson v. Miller, 772 F.2d 375, 377 (7th Cir. 1985) (aspect of imprisonment issue); Ruviwat v. Smith, 701 F.2d 844, 845 (9th Cir. 1983) (parole issue). Absent a specific statutory requirement, "application of the doctrine of exhaustion of administrative remedies is within the sound discretion of the district court." United Farm Workers v. Arizona Agricultural Employment Relations Bd., 669 F.2d 1249, 1253 (9th Cir. 1982).

The plaintiff need not exhaust his administrative remedies when the remedies are inadequate, inefficacious, or futile, when the pursuit of administrative remedies would injure the plaintiff irreparably, or when the administrative proceedings themselves are void. Id. The district court's determination of whether exhaustion is required will not be disturbed unless the court clearly has abused its discretion. Id. A district court's determination that a plaintiff must exhaust administrative remedies will not be reversed when a plaintiff fails to show affirmatively that one of the exhaustion exceptions is present. See id. at 1253-54 (plaintiff failed to meet his burden of showing that administrative appeal would have been useless and made no affirmative showing of irreparable injury).

The district court rejected Green's excuses for not exhausting his remedies, ruling that Green's futility argument should be presented to the administrative agency in question and that there was no authority for the argument that Green should not be required to exhaust because his claims involved constitutional rights.

The district court did not err in ruling that Green's "reasoning for deliberately bypassing the administrative process fails to raise sufficiently exceptional grounds for this court to waive the requirement." Other than his conclusory assertion that he and other prisoners have in the past been denied administrative relief on the same issues, Green failed to provide any specific allegations that would have demonstrated the futility of resorting to his available administrative remedies. A previous negative ruling by an administrative agency does not demonstrate that exhaustion is futile. See Ruviwat, 701 F.2d at 845 (regarding Parole Commission appeals process); cf. Humboldt County v. United States, 684 F.2d 1276, 1285 (9th Cir. 1982) (futility established when Bureau of Land Management informed county it would be inappropriate at that time for the Bureau to pass on the county's application for conveyance of land to create a county part). Thus, the district court did not abuse its discretion in rejecting this excuse for not exhausting administrative remedies. See United Farm Workers, 669 F.2d at 1253-54.

Green has not provided any authority for the proposition that because he raises constitutional claims he need not exhaust. Green is not suffering irreparable harm with regard to any of his prison condition claims because he has been transferred from FCI-Phoenix to the United States Penitentiary at Terre Haute, Indiana. Nor has Green demonstrated how he could be suffering irreparable injury with regard to his offense classification and presentence investigation report claims. The district court, therefore, did not abuse its discretion in rejecting this excuse for not exhausting. See id.



The panel unanimously finds this case suitable for submission on the record and briefs and without oral argument pursuant to Fed. R. App. P. 34(a) and Ninth Circuit 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 9th Cir.R. 36-3


Green recently filed a bail motion which alleges that his section 2255 motion now has been pending for 27 months


Green stated that he had filed a civil rights action in the District of Columbia in which he alleged that trial judge Porter and sentencing judge Sanders of the Texas district court were part of a conspiracy to bring false charges against Green. Green also alleged that he had filed a section 2255 motion in May 1987 and that Judge Sanders refused to rule on it to protect the reputation of Judge Porter. There is, however, some doubt as to the exact length of time that Green's motion has been pending in Texas inasmuch as it apparently was dismissed initially until a pending Fed. R. Crim. P. 35 appeal could be decided


Green has requested bail pending a decision on his appeal. Admission to bail pending appeal of the denial of post-conviction relief is reserved for extraordinary cases involving special circumstances. See Benson v. California, 328 F.2d 159, 162 & n. 2 (justification for bail pending appeal of district court's denial of habeas petition requires some special reason beyond habeas allegations that facially make out a clear case for release); see also Land of Deeds, No. 89-15627, slip op. at 7205, 7206 (9th Cir. June 29, 1989) (bail pending district court's hapeas decision reserved for extraordinary cases involving special circumstances or a high probability of success). Green also filed a "Motion for Special Court Order" which argues that his section 2255 motion is ineffective due to delay. We deny this motion also