Unpublished Disposition, 934 F.2d 324 (9th Cir. 1991)

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U.S. Court of Appeals for the Ninth Circuit - 934 F.2d 324 (9th Cir. 1991)

John Luther KUNSMAN, Petitioner-Appellant,v.Peter M. CARLSON, Warden, U.S. Parole Comm., Respondents-Appellees.

No. 89-15642.

United States Court of Appeals, Ninth Circuit.

Submitted May 29, 1991.* Decided May 31, 1991.

Before HUG, KOZINSKI and LEAVY, Circuit Judges.


John Luther Kunsman, a federal prisoner, appeals pro se the district court's sua sponte dismissal of his 28 U.S.C. § 2241 habeas petition for failure to exhaust administrative remedies.1  We review de novo, Carter v. McCarthy, 806 F.2d 1373, 1375 (9th Cir. 1986), cert. denied, 484 U.S. 870 (1987), and affirm.

In his petition, Kunsman alleged that he was denied due process in connection with the revocation of his parole because the Parole Commission did not notify him that a possible consequence of his revocation proceedings would be the forfeiture of "street time." Kunsman sought credit for the time he spent on parole.

Kunsman contends that it would be futile and that he would suffer undue prejudice if he were required to exhaust his administrative remedies. Kunsman also contends that the district court erred by dismissing his habeas petition before service of process. These contentions lack merit.

Federal prisoners must exhaust their federal administrative remedies before bringing a petition for habeas corpus in federal court. Martinez v. Roberts, 804 F.2d 570, 571 (9th Cir. 1986); Ruviwat v. Smith, 701 F.2d 844 (1983). Dismissal is proper where the record makes clear that petitioner has not exhausted administrative remedies. Martinez, 804 F.2d at 571. The requirement of exhaustion of remedies aids judicial review by allowing the appropriate development of a factual record, conserves the court's time because of the possibility that the relief applied for may be granted at the administrative level, and allows the administrative agency an opportunity to correct errors occurring in the course of administrative proceedings. Ruviwat, 701 F.2d at 845.

There are, however, several exceptions to the exhaustion requirement. United Farm Workers v. Arizona Agric. Employment Relations Bd., 669 F.2d 1249, 1253 (9th Cir. 1982). Exhaustion of administrative remedies is not required when pursuit of the remedies are would injure the plaintiff irreparably, when the remedies are inadequate or futile, or when the administrative proceedings are void. Id. at 1253.

Here, Kunsman does not dispute that he failed to invoke or exhaust his administrative remedies. Instead, he asserts that the administrative appeal process is too lengthy and that if the district court had granted his petition on the merits, he would have been immediately released from custody. Kunsman's reasoning for deliberately bypassing the administrative process fails to raise sufficiently exceptional grounds to justify waiver of the exhaustion requirement. See Farm Workers, 669 F.2d 1249 at 1253. Accordingly, the district court's sua sponte denial of Kunsman's habeas petition was proper.



The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a); 9th Cir.R. 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


Although Kunsman failed to file his notice of appeal within 30 days after the date of entry of the judgment as required by Fed. R. App. P. 4(a) (1), the district court found that Kunsman had shown excusable neglect. The district court granted an extension of time for Kunsman to file his notice of appeal. Thereafter, Kunsman filed a timely notice of appeal