Preston v. Edwards

UNPUBLISHED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Vacated and remanded by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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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