F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAY 30 2000
TENTH CIRCUIT
PATRICK FISHER
Clerk
DAVID Y. MERRITT,
Petitioner-Appellant,
v. No. 00-1027
(D.C. No. 99-Z-2325)
UNITED STATES PAROLE (D. Colo.)
COMMISSION,
Respondent-Appellee.
ORDER AND JUDGMENT *
Before SEYMOUR, Chief Judge, EBEL, and BRISCOE, Circuit Judges.
Petitioner-Appellant David Y. Merritt (“Merritt”) filed an application for a
writ of habeas corpus pursuant to 28 U.S.C. § 2241 in the United States District
Court for the District of Colorado challenging a decision of Respondent-Appellee
United States Parole Commission (the “Parole Commission”) to deny him release
on parole on November 8, 1999. (See Doc. 3.) The district court granted Merritt
*
After examining appellant’s brief and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R.
34.1(G). The case is therefore ordered submitted without oral argument. 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Order and Judgment is not binding precedent, except under the doctrines of law of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.
leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915 (see Doc. 2) and
ordered Merritt to show cause why his application should not be dismissed for
failure to exhaust his administrative remedies (see Doc. 4). Merritt filed a
response arguing that he had, in fact, filed an administrative appeal on June 8,
1999, but that the Parole Commission had not responded to the appeal. (See Doc.
5.) In the alternative, Merritt argued that exhaustion of his appeal would be futile
because the date for his release had already passed. (See id.) The district court
dismissed Merritt’s application on the ground that he had failed to exhaust his
administrative remedies. (See Doc. 7.) The district court reasoned that Merritt
was disputing the outcome of a September 22, 1999 parole hearing, that his June
8, 1999 appeal predated the hearing, and that he had therefore failed to exhaust
his administrative remedies with respect to the September 1999 hearing. (See id.)
The district court further found that exhaustion of his administrative remedies was
not futile because the Parole Commission could determine through the
administrative appeal process that it had erred in failing to release Merritt. (See
id.) We grant Merritt leave to proceed on appeal in forma pauperis and
REVERSE and REMAND.
Merritt raises a number of issues in his brief on appeal. Merritt first
contends that he has, in fact, exhausted his administrative remedies. Second,
Merritt asserts that the district court erred in raising sua sponte the question of
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exhaustion because exhaustion is an affirmative defense rather than a
jurisdictional bar. Finally, Merritt argues that even if he has failed to exhaust, the
merits of his claims are properly before the court because a number of exceptions
to the exhaustion requirement are applicable under the circumstances of this case.
As an initial matter, this court concludes that Merritt’s argument
complaining that the district court sua sponte raised the issue of exhaustion is
without merit. This court has noted that “where a doctrine implicates
[nonjurisdictional] values that may transcend the concerns of the parties to an
action, it is not inappropriate for the court, on its own motion, to invoke the
doctrine.” Hardiman v. Reynolds, 971 F.2d 500, 502-03 (10th Cir. 1992) (citation
and quotations omitted). Exhaustion of administrative remedies prior to filing an
action pursuant to § 2241 is such a doctrine. This court has emphasized that
judicial intervention pursuant to § 2241 is usually “deferred until administrative
remedies have been exhausted” because “the agency is in a superior position to
investigate the facts.” Williams v. O’Brien, 792 F.2d 986, 987 (10th Cir. 1986).
Moreover, our view is consistent with Holman v. Booker, No. 98-3124, 1998 WL
864018, at **4 (10th Cir. Dec. 14, 1998) (unpublished), which addressed and
rejected precisely the issue raised by Merritt. See also Hardiman, 971 F.2d at 903
(concluding that a district court may properly raise sua sponte issues of state
procedural bar in habeas corpus actions brought pursuant to 28 U.S.C. § 2254).
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We therefore conclude that the district court did not err in raising the exhaustion
issue sua sponte and that the question of exhaustion was properly considered by
that court.
Turning to Merritt’s remaining claims, we find that there is evidence to
suggest that Merritt has, in fact, exhausted his administrative remedies. Merritt
has provided documentation to show that he renewed his June 1999 administrative
appeal by letter dated October 15, 1999. (See Aplt. Br. Exh. B.) Merritt further
asserts that the Probation Commission has not acted on this appeal. Based on
these allegations, we are concerned that the district court’s decision to dismiss
Merritt’s application sua sponte for the failure to exhaust his administrative
remedies may have been premature. We therefore remand this case to the district
court with the direction that the court accomplish service on the Parole
Commission and order the Parole Commission to file a responsive brief so that
the district court may fully consider Merritt’s claim that he has exhausted his
administrative remedies as well as any further issues as may be appropriate.
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Finally, Merritt has filed a Motion for Summary Reversal and a Motion to
Designate Action on Emergency Docket with this court. In light of our decision
to remand this case to the district court for further consideration of the exhaustion
issue, we deny both motions.
ENTERED FOR THE COURT
David M. Ebel
Circuit Judge
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