                                                                              FILED
                           NOT FOR PUBLICATION                                 JAN 15 2015

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


WINIFRED JIAU,                                   No. 13-15378

              Petitioner - Appellant,
                                                 D.C. No. 3:12-cv-04193-SI
  v.

KAIRE POOLE, PsyD and RANDY L.                   MEMORANDUM*
TEWS, Warden,

              Respondents - Appellees.



WINIFRED JIAU,                                   No. 13-15489

              Plaintiff - Appellant,
                                                 D.C. No. 3:13-cv-00248-WHA
  v.

KAIRE POOLE; RANDY L. TEWS,
Warden,

             Defendants- Appellees.


                   Appeal from the United States District Court
                     for the Northern District of California
                     Susan Illston, District Judge, Presiding
                    William Alsup, District Judge, Presiding

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                     Argued and Submitted December 8, 2014
                            San Francisco, California

Before: RAWLINSON and MURGUIA, Circuit Judges, and NAVARRO, Chief
District Judge.**

      Petitioner Winifred Jiau appeals the sua sponte dismissals of her two cases

by the district court. Jiau’s 28 U.S.C. § 2241 habeas petition and her action

brought under Bivens v. Six Unknown Named Agents of Federal Bureau of

Narcotics, 403 U.S. 388 (1971), both allege constitutional violations in connection

with her expulsion from the Residential Drug Abuse Treatment Program

(“RDAP”). Therefore, these cases were consolidated on appeal. We review de

novo. Close v. Thomas, 653 F.3d 970, 973 (9th Cir. 2011); Adams v. Johnson, 355

F.3d 1179, 1183 (9th Cir. 2004). We affirm the dismissal of Jiau’s habeas petition

and vacate and remand the dismissal of her Bivens action.

      The district court sua sponte dismissed Jiau’s habeas petition without

prejudice citing her failure to exhaust her administrative remedies prior to filing

her action. Though exhaustion of administrative remedies is not a jurisdictional

prerequisite for habeas petitions, courts generally “require, as a prudential matter,

that habeas petitioners exhaust available judicial and administrative remedies



       **
             The Honorable Gloria M. Navarro, Chief District Judge for the U.S.
District Court for the District of Nevada, sitting by designation.

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before seeking [such] relief.” Castro-Cortez v. INS, 239 F.3d 1037, 1047 (9th Cir.

2001), abrogated on other grounds by Fernandez-Vargas v. Gonzales, 548 U.S. 30

(2006). Accordingly, because Jiau had failed to exhaust her administrative

remedies at the time she filed her petition, the district court correctly dismissed her

habeas action. Leonardo v. Crawford, 646 F.3d 1157, 1160 (9th Cir. 2011);

Martinez v. Roberts, 804 F.2d 570, 571 (9th Cir. 1986).

      The district court sua sponte dismissed Jiau’s Bivens action citing that by

seeking readmission into RDAP, her claims necessarily implicated the duration of

her confinement and success on those claims would entitle her to an earlier release;

therefore, under Skinner v. Switzer, 131 S. Ct. 1289 (2011), those claims could

only be raised in a habeas petition. In Skinner, the Supreme Court held that habeas

is the exclusive remedy for a prisoner who seeks immediate or speedier release

from confinement, but it limited this exclusivity only to actions where success on

the claims would “necessarily spell speedier release.” Skinner, 131 S. Ct. at 1293

(citing Wilkinson v. Dotson, 544 U.S. 74 81–82 (2005)). Accordingly, implicit in

the district court’s order is a finding that readmission into RDAP would

“necessarily spell speedier release” for Jiau.

      The language in the applicable statute, however, indicates that successful

completion of RDAP does not necessarily result in a reduced sentence, but rather


                                           3
that the Bureau of Prisons (“BOP”) retains discretion over whether to grant a

sentence reduction to a prisoner who completes the program. See 18 U.S.C. §

3621(e)(2)(B) (“The period a prisoner convicted of a nonviolent offense remains in

custody after successfully completing a treatment program may be reduced by the

Bureau of Prisons . . . .”) (emphasis added). Moreover, the discretion provided to

the BOP under the statute to decide whether to grant a sentence reduction, even

after a prisoner successfully completes RDAP, has been explicitly recognized by

both the Supreme Court and this Court. Lopez v. Davis, 531 U.S. 230, 241 (2001)

(“When an eligible prisoner successfully completes drug treatment, the Bureau

thus has the authority, but not the duty, . . . to reduce his term of imprisonment.”);

Cort v. Crabtree, 113 F.3d 1081, 1085 (9th Cir. 1997) (“[E]ven when a statutorily

eligible prisoner successfully completes the treatment program, the Bureau retains

discretion under the statute to grant or deny a sentence reduction.”). Therefore,

even if success in Jiau’s Bivens action would lead to her reinstatement into RDAP,

that reinstatement, and her presumed successful completion of the program, would

still not “necessarily” result in a sentence reduction and speedier release.

Accordingly, the district court’s dismissal of Jiau’s Bivens action is vacated and

remanded.




                                           4
     Appeal No. 13-15378 is AFFIRMED. Appeal No. 13-0248 is VACATED

and REMANDED. Each party shall bear its costs on appeal.




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