Unpublished Disposition, 904 F.2d 41 (9th Cir. 1988)

MEMORANDUM^** 

Victor Donald Uebe, a federal prisoner, appeals the district court's order dismissing his 28 U.S.C. § 2241 habeas petition for failure to exhaust administrative remedies. We reverse.

Before bringing a habeas petition, a federal prisoner must exhaust any federal administrative remedies. Martinez v. Roberts, 804 F.2d 570, 571 (9th Cir. 1986); Tatum v. Christensen, 786 F.2d 959, 964 (9th Cir. 1986). This requirement was judicially created and is therefore not jurisdictional. Brown v. Rison, 895 F.2d 533, 535 (9th Cir. 1990). Accordingly, if the government does not raise the exhaustion defense in district court, then it waives that defense. Raines v. U.S. Parole Commission, 829 F.2d 840, 844-45 (9th Cir. 1987) (per curiam).

On January 24, 1988, while incarcerated at the Federal Prison Camp in Boron, California, Uebe received an incident report accusing him of narcotics possession in violation of prison regulations. After a hearing, a Disciplinary Hearing Officer (DHO) found him guilty. Uebe forfeited 45 days statutory good time credit and was transferred to a higher security facility.

Uebe appealed the DHO's determination to the Regional Director of the Bureau of Prisons. He argued that the methamphetamine found in his possession was mishandled and tampered with and that he had no history of drug abuse in prison. That appeal was denied. Uebe then appealed to the Bureau of Prisons Central Administrative Remedy Appeals Office, and that appeal was also denied. Uebe then filed this habeas petition in the district court, contending prison disciplinary proceedings violated his right to due process, and seeking reinstatement of good time credits, restoration of his previous custody level, and transfer back to the institution to which he was originally assigned.

On appeal and before the district court, the government conceded that Uebe has exhausted his administrative remedies. In its brief to this court the government stated: "It is therefore the position of the respondents that the district court should rule on the merits of the case rather than having the matter sent back for further administrative proceedings." We therefore reverse the district court's determination that Uebe did not exhaust his administrative remedies, and remand for a decision on the merits of his habeas petition. See Brown, 895 F.2d at 535; Raines, 829 F.2d at 844-45.¹ 

REVERSED AND REMANDED.