OpenJurist

856 F2d 192 Blue v. Pw Keohane M

856 F.2d 192

Donald L. BLUE, Petitioner-Appellant,
v.
P.W. KEOHANE, Warden; M. Rast; United States Parole
Commission, Respondents- Appellees.

No. 88-5245.

United States Court of Appeals, Sixth Circuit.

Aug. 30, 1988.

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.

Before BOYCE F. MARTIN, Jr., RALPH B. GUY, Jr. and ALAN E. NORRIS, Circuit Judges.

ORDER

1

Donald L. Blue appeals the district court's judgment sua sponte dismissing his petition for habeas corpus relief filed under 28 U.S.C. Sec. 2241. The appeal has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination of the record and briefs, this panel unanimously agrees that oral argument is not needed. Fed.R.App.P. 34(a).

2

Blue, a D.C. Code offender in federal custody, claimed illegal confinement based on the denial of equal protection and due process. He alleged that the United States Parole Commission refused to determine his parole eligibility pursuant to the District of Columbia guidelines as it does for female offenders incarcerated under the same circumstances. The district court sua sponte dismissed the action for lack of exhaustion. All parties seek a remand of this action to the district court.

3

Upon consideration, we conclude that this action should be remanded. Petitioner has facially stated a valid claim for relief. See Walker v. Luther, 830 F.2d 1208 (2d Cir.1987); Johnson v. Williford, 821 F.2d 1279 (7th Cir.1987); Thomas v. United States Parole Comm'n, 672 F.Supp. 256 (E.D.Va.1987).

4

Although it is questionable whether all prisoners raising this claim should be required to exhaust their administrative remedies, as exhaustion may well be an exercise in futility, petitioner has established on appeal that he has exhausted his administrative remedies.

5

Accordingly, the judgment of the district court is hereby vacated and the case is remanded for further consideration. Rule 9(b)(6), Rules of the Sixth Circuit.