Upon dismissal of this petition, relator may file a written appeal of the Regional Director's decision to the National Appellate Board. The Board may decide to deny the appeal on the ground that it is untimely under 39 Fed.Reg. § 2.26 (1974), or the Board in its discretion may allow petitioner to file the appeal out of time and rule on the merits of his contentions. It is only after the petitioner has filed an appeal to the Appellate Board, thereby giving it the opportunity to rule on his contentions, that he would have exhausted his administrative remedies.
Even if this court were to accept petitioner's argument that he has exhausted his administrative remedies because the time period for filing an appeal to the National Appellate Board has expired, his petition might still be dismissed on the ground he deliberately bypassed an available administrative remedy and therefore should be denied an opportunity to assert his claims in federal court. Fay v. Noia, 1963, 372 U.S. 391, 438, 83 S. Ct. 822, 9 L. Ed. 2d 837; Henry v. Mississippi, 1965, 379 U.S. 443, 85 S. Ct. 564, 13 L. Ed. 2d 408; Angle v. Laird, 10 Cir. 1970, 429 F.2d 892, cert. denied, 1971, 401 U.S. 918, 91 S. Ct. 90, 27 L. Ed. 2d 819. The test for such deliberate bypass or waiver is an awareness of the availability of an administrative remedy and a decision not to use it made by the petitioner himself. Angle v. Laird, 429 F.2d at 894; Watkins v. Crouse, 10 Cir. 1965, 344 F.2d 927, 929. Where a federal habeas corpus petitioner has deliberately bypassed available state or administrative procedures and in doing so has forfeited his state or administrative remedies, a federal court in its discretion may deny habeas corpus relief. See Montgomery v. Hopper, 5 Cir. 1973, 488 F.2d 877; United States ex rel. Schaedel v. Follette, 2 Cir. 1971, 447 F.2d 1297; Anderson v. Nelson, 9 Cir. 1970, 432 F.2d 55; United States ex rel. Navarro v. Johnson, E.D.Pa.1973, 365 F. Supp. 676; United States ex rel. Brown v. Russell, E.D.Pa.1970, 318 F. Supp. 76.
The deliberate bypass doctrine is essential to the vitality of the exhaustion of administrative remedies doctrine established in Soyka v. Alldredge, 3 Cir. 1973, 481 F.2d 303. Without the deliberate bypass doctrine, administrative review procedures could be avoided simply by waiting for prescribed time periods for administrative appeal to run.
Since the court has decided for the aforementioned reasons that petitioner has failed to exhaust his administrative remedies, the court at this time makes no judgment as to whether there has been a deliberate bypass of administrative procedures.
The court has discussed the deliberate bypass doctrine in order to impress upon those who seek review of Parole Board decisions that this doctrine, in combination with the exhaustion of administrative remedies rule, clearly requires federal prisoners to avail themselves of the means of administrative review of decisions of the hearing examiner panel, provided for under the regulations promulgated by the United States Parole Board, 39 Fed.Reg. §§ 2.24-2.27, before seeking federal habeas corpus relief.
The petition for a writ of habeas corpus will be denied for failure to exhaust administrative remedies.