Opinion
No. 3-02-CV-2293-P
December 27, 2002
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Petitioner Rodney Cohee, appearing pro se, has filed an application for writ of habeas corpus pursuant to 28 U.S.C. § 2241. For the reasons stated herein, the application should be dismissed without prejudice for failure to exhaust administrative remedies.
I.
On February 1, 1996, petitioner was released on parole after serving part of a seven-year sentence on federal drug charges. While on parole, petitioner was arrested for attempting to purchase 13 kilograms of cocaine from an undercover Dallas police officer. The state drug charge was later dismissed on motion of the district attorney. However, federal authorities revoked petitioner's parole based on this arrest and his failure to report a change in residence.
The Parole Commission issued a formal notice of action on September 30, 2002. The notice states that "[t]he above decision is appealable to the National Appeals Board . . . within thirty days of the date of this Notice." Petitioner did not immediately appeal the decision. Instead, he filed this action in federal court on October 17, 2002.
II.
A federal prisoner must exhaust all administrative remedies before seeking judicial review of a parole determination. See Smith v. Thompson, 937 F.2d 217, 219 (5th Cir. 1991); Lane v. Hanberry, 593 F.2d 648, 649 (5th Cir. 1979). These remedies include an appeal from the initial decision of the Parole Commission to the National Appeals Board. 28 C.F.R. § 2.26. A court may excuse this exhaustion requirement only when a petitioner can demonstrate "extraordinary circumstances" and show that an administrative remedy is unavailable, inappropriate to the relief sought, or clearly futile. Fuller v. Rich, 11 F.3d 61, 62 (5th Cir. 1994); Hessbrook v. Lennon, 777 F.2d 999, 1003 (5th Cir. 1985). The expiration of a deadline to appeal a parole determination does not constitute "extraordinary circumstances." Fuller, 11 F.3d at 62. Rather, a petitioner must continue to pursue this remedy and give the National Appeals Board an opportunity to dismiss the proceeding or consider the merits of the claim. A petitioner may not seek federal habeas relief until this administrative remedy has been exhausted. Id.
On November 27, 2002 — nearly six weeks after this case was filed — petitioner appealed his parole revocation to the National Appeals Board. ( Spears Quest., Attch. 1). That appeal is still pending. ( Id.). Until the National Appeals Board issues a decision, petitioner has not exhausted his administrative remedies. See Fuller, 11 F.3d at 62; Smith, 937 F.2d at 219. Consequently, this case must be dismissed.
RECOMMENDATION
Plaintiff's application for writ of habeas corpus should be dismissed without prejudice for failure to exhaust administrative remedies.