Unpublished Disposition, 923 F.2d 863 (9th Cir. 1989)

MEMORANDUM^** 

Carl W. Raetzsch, 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 have jurisdiction under 28 U.S.C. § 2253. We review de novo, Camacho v. White, 918 F.2d 74, 77 (9th Cir. 1990), and vacate and remand.

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). This requirement was judicially created and therefore is 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. United States Parole Comm'n, 829 F.2d 840, 844-45 (9th Cir. 1987) (per curiam).

Here, Raetzsch began serving a five-year special parole term on May 15, 1986. On April 4, 1988, he was returned to custody after he violated the administrative conditions of parole by using methadone. On June 2, 1988, at a parole revocation hearing, Raetzsch entered a plea of true to the parole violation. On June 13, 1988, the parole commission granted Raetzsch credit against his sentence for all of the time he had spent on parole before the violation ("street time").

On December 11, 1989, however, a hearing examiner for the Parole Commission's Western Region notified Raetzsch that, due to its new interpretation of the relevant statute, the Commission was rescinding its June 13th order which had granted him credit against his sentence for street time.¹  On December 15, 1989, Raetzsch wrote to both the U.S. Parole Commissioner for the Western Region and to the National Commissioner, and requested either a new revocation hearing or restoration of his street time credit. It is not clear from the record what, if any, response he received to this letter.² 

The district court acted prematurely when it dismissed Raetzsch's habeas petition for failure to exhaust administrative remedies without ordering service of the petition on the respondents. Exhaustion of administrative remedies is not a jurisdictional requirement, but rather is a defense that should be raised by the government. See Brown, 895 F.2d at 535; Raines, 829 F.2d 844-45. Moreover, the district court record does not clearly indicate that Raetzsch failed to exhaust available administrative remedies, nor does the district court's order explain the factual basis for its determination. Cf. Martinez, 804 F.2d at 571 (dismissal is proper where the record makes clear that petitioner has not exhausted administrative remedies). Presumably the respondents' answer to Raetzsch's petition will clarify the issue of whether he exhausted available administrative remedies by creating a more complete record. Therefore, we vacate and remand for issuance and service of process upon the respondents.

VACATED AND REMANDED.