                              UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 06-6702



TYRONE PRESTON,

                                            Petitioner - Appellant,

          versus


L. M. EDWARDS, Warden,

                                             Respondent - Appellee.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. James C. Cacheris, Senior
District Judge. (1:06-cv-00173-JCC)


Submitted:   August 8, 2007                  Decided:   May 9, 2008


Before WILKINSON, MICHAEL, and TRAXLER, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


Tyrone Preston, Appellant Pro Se. Susan Bland Curwood, OFFICE OF
THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

          Tyrone Preston, a Virginia prisoner, appeals the district

court’s order dismissing his 28 U.S.C. § 2254 (2000) petition

pursuant to Rule 4 of the Rules Governing Section 2254 Cases.

Having previously granted a certificate of appealability, see 28

U.S.C. § 2253(c) (2000), we now find the district court erred in

dismissing the petition.         Accordingly, we vacate the district

court’s order and remand for its reconsideration.

          In his § 2254 petition, Preston alleged that his term of

incarceration was extended because he refused to participate in a

state sex offender treatment program requiring him to admit past

offending behavior in violation of his Fifth Amendment right to be

free from compelled self-incrimination.         See McKune v. Lile, 536

U.S. 24 (2002). The district court construed Preston’s petition as

“merely seek[ing] to assert a constitutional violation stemming

from his not receiving the classification level he wanted.”          The

court further ruled Preston’s challenge to the constitutionality of

the state program was properly brought in an action under 42 U.S.C.

§ 1983 (2000), not under § 2254.            The court did not analyze

Preston’s claim under McKune but dismissed the petition after

finding he had no liberty interest in his classification level.

          In his informal brief on appeal, Preston contended that

the extension of his confinement as a result of his refusal to

participate   in   the   state   program   constituted   unconstitutional


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compulsion under McKune, and the district court erred in ruling his

challenge to the program was only properly brought in an action

under § 1983. After granting a certificate of appealability on the

issue of whether the district court erred in dismissing Preston’s

Fifth Amendment compelled self-incrimination claim, we directed

that the Appellee file a responsive brief pursuant to 4th Cir. R.

22(a)(1)(B).    In the brief, the Appellee notes that Preston’s lack

of a liberty interest in being placed in a particular good conduct

classification level does not answer the question as to whether he

can be compelled to discuss possible criminal wrongs as a condition

of receiving a statutory benefit, and the framework to address this

question is contained in the Supreme Court’s decision in McKune.

           The Appellee asserts that because Preston challenged an

alleged extension of his term of incarceration, and thus the “fact

or duration” of his confinement, “his claim must be brought as a

habeas corpus action, subject to the exhaustion requirement.”

Because Preston acknowledged in his § 2254 petition that he did not

present   his   claim   in   state   court,    the   Appellee   contends   his

petition should be dismissed without prejudice for failure to

exhaust his state court remedies.             In his reply brief, Preston

responds that he must only exhaust those administrative and state

court remedies that are actually available, and he asserts there

were no adequate or effective state court remedies in his case.




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             As contended by both parties on appeal, we find that

Preston’s claim challenging the alleged extension of his term of

confinement as a violation of his Fifth Amendment right to be free

from compelled self-incrimination is cognizable in a habeas action

and therefore subject to the exhaustion requirement under 28 U.S.C.

§ 2254(b).    See Wilkinson v. Dotson, 544 U.S. 74 (2005); Preiser v.

Rodriguez, 411 U.S. 475 (1973); Todd v. Baskerville, 712 F.2d 70

(4th Cir. 1983).     We thus conclude the district court erred in

dismissing Preston’s petition under Rule 4 after ruling he had no

liberty interest in his classification level and his claim was only

properly brought in an action under § 1983.

             Accordingly, we remand this case to the district court

for reconsideration of Preston’s § 2254 petition. We dispense with

oral   argument   because   the   facts   and   legal   contentions   are

adequately presented in the materials before the court and argument

would not aid the decisional process.



                                                   VACATED AND REMANDED




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