F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAR 12 1998
TENTH CIRCUIT
PATRICK FISHER
Clerk
MELAQUIAS SANDOVAL,
Petitioner-Appellant,
v. No. 97-1412
J.W. BOOKER, (D.C. No. 97-Z-225)
(D. Colo.)
Respondent-Appellee.
ORDER AND JUDGMENT*
Before BALDOCK, EBEL, and MURPHY, Circuit Judges.**
Petitioner Melaquias Sandoval appeals the district court’s dismissal of his petition
for a writ of habeas corpus brought pursuant to 28 U.S.C. § 2241.1 Petitioner also seeks
leave to proceed on appeal in forma pauperis. Our jurisdiction arises under 28 U.S.C.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court generally
disfavors the citation of orders and judgments; nevertheless, an order and judgment may
be cited under the terms and conditions of 10th Cir. R. 36.3.
**
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this case.
See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The case is therefore ordered submitted
without oral argument.
1
Although petitioner filed a motion for a certificate of appealability, we note that
one is not required in order to appeal a final order in a proceeding under 28 U.S.C.
§ 2241. McIntosh v. U.S. Parole Comm’n, 115 F.3d 809, 810 n.1 (10th Cir. 1997).
§ 1291.
Petitioner was convicted of conspiracy to distribute, and possession with intent to
distribute cocaine, in respective violation of 21 U.S.C. §§ 846 and 841(a)(1). On August
6, 1986, the district court sentenced Petitioner to one term of seven years and one term of
five years with a four-year special parole term, to be served concurrently. Petitioner was
released on June 3, 1993. On March 14, 1996, the United States Parole Commission
(hereinafter “USPC”) revoked Petitioner’s parole after determining he had violated the
terms of his special parole. Petitioner then filed two requests with the Bureau of Prisons
for administrative relief, claiming the USPC lacked jurisdiction to revoke his parole
because the violations occurred after the expiration of his special parole. The Petitioner
did not complete the administrative grievance process and instead filed a petition for a
writ of habeas corpus in the district court. On October 14, 1997, the district court
dismissed the petition with prejudice for failure to exhaust administrative remedies.
We first address Petitioner’s application to proceed in forma pauperis. Having
reviewed Petitioner’s affidavit and the other materials filed in support of his application,
we conclude that he has demonstrated his inability to pay the required fees and the
existence of a nonfrivolous argument in support of the issues he raises on appeal.2 See
DeBardeleben v. Quinlan, 937 F.2d 502, 505 (10th Cir. 1991). Accordingly, we grant his
We note that the in forma pauperis filing fee provisions of the Prison Litigation
2
Reform Act of 1995 do not apply to § 2241 proceedings. McIntosh v. U.S. Parole
Comm’n, 115 F.3d 809, 812 (10th Cir. 1997).
2
application to proceed in forma pauperis.
We now turn to the merits of this appeal. Petitioner challenges the district court’s
dismissal of his petition for failure to exhaust administrative remedies. We review the
district court’s factual findings for clear error and its legal conclusions de novo.
Matthews v. Price, 83 F.3d 328, 331 (10th Cir. 1996). After reviewing the parties’ briefs,
pleadings, and the entire record before us, we agree with the district court that Petitioner
did not exhaust his administrative remedies. Therefore, he may not seek relief under 28
U.S.C. § 2241 until his administrative remedies are exhausted. Williams v. O’Brien, 792
F.2d 986, 987 (10th Cir. 1986). Although we agree with the district court’s conclusion
that Petitioner failed to exhaust his administrative remedies, the district court erred in
dismissing the petition with prejudice. The dismissal of a habeas petition for failure to
exhaust administrative remedies should generally be without prejudice. Demarest v.
Price, 130 F.3d 922, 939 (10th Cir. 1997). Consequently, we remand to the district court
with instructions to vacate its order and to enter an order dismissing the petition without
prejudice for failure to exhaust administrative remedies.
REMANDED.
Entered for the Court,
Bobby R. Baldock
Circuit Judge
3