* After examining the briefs and appellate record, this panel has

determined unanimously to grant the parties’ reques t for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1.9. Th e case is therefore ordered submitted without oral ar gument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court g enerally disfavors the citation of orders and judgments; nevertheless, an order and ju dgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### JUN 15 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JOE CONTRERAS, Defendant-Appellant. No. 97-8098 (D.C. No. 97-CV-104-B) (D. Wyo.)

ORDER AND JUDGMENT *

Before BALDOCK , EBEL and MURPHY , Circuit Judges.
In 1994, Joe Contreras (“Contreras”) pled guilty to federal drug charges and was sentenced to 120 months’ imprisonment. (RO A 1 ). On April 28, 1997, Contreras filed a Motion to Vacate, Set Aside, or C orrect Sentence under 28 U.S.C. § 2255 on the grounds that his guilty plea w as unknowing and involuntary as a result of the government’s breach of the plea agreement. (ROA 1 & 7 ).- 2 -

Contreras contended that the plea agreement provide d that his federal sentence would run concurrently with any state sentence he m ight receive in connection with the conduct at issue in the federal proceeding s. (ROA 1 & 7 ). Contreras argued that the government violated the plea agreem ent because Federal Bureau of Prison authorities failed to credit his sentence for over two and one-half years of time served from the date of his arrest under bo th state and federal custody. (ROA 1 & 7 ). As a result, he claimed that his sentence had b een extended improperly by 30 months to 150 months’ imprisonment

. The district court concluded that Contreras’ claim that the government breached the plea agreement by failing to give him credit for time served could not be heard until after he exhausted his administr ative remedies, i.e. the Bureau of Prisons’ final determination of its position with regard to his sentence. (ROA 6 ). Consequently, the district court found that it lacked jurisdiction to consider Contreras’ claim and denied his motion. (ROA 6 ). Contreras filed a Motion for Reconsideration arguing that because he was challen ging the voluntariness of his plea agreement and not his sentence, he need not exhaust administrative remedies. (ROA 7 ). In the alternative, advising the court that he was in the process of exhausting his administrative remedies and was onlyawaiting a final decision from the Bureau of Prisons, Contreras asked the dis trict court to vacate its order dismissing his § 2255 motion and to stay the procee dings until after the1 Although the notice of appeal was not filed with the district court until

more than 30 days after entry of the order of dismi ssal, Contreras delivered the notice of appeal to prison officials before the 30- day deadline as provided by Fed. R. App. P. 4(c). - 3 - administrative process had run its course. (ROA 7 ). Contreras noted that he brought his § 2255 motion before he had completed the administrative process only because of the one-year limitation on claims f iled under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). In addition, because his § 2255 motion was filed after the effective date of AEDPA, dismissal of his claim outright without staying the proceedings would prev ent him from filing a second § 2255 motion. See 28 U.S.C.A. § 2255 (West Supp. 1997) (disallowing successive motions except in limited circumstances) . The district court denied Contreras’ motion to reconsider on July 24, 1997. (ROA 10 ). Contreras now appeals. 1 On August 25, 1997, the Bureau of Prisons issued a final decision in Contreras’ administrative appeal of his sentence de nying his claim for a sentence reduction. (Appellant Brief, Exhibit C ). As a result, Contreras has exhausted his administrative remedies. Given Contreras’ good fai th efforts to comply with AEDPA and exhaust his administrative remedies, the district court should have stayed the proceedings in this case until after the administrative process had come to an end. Thus, we find that the district court e rred by denying Contreras’- 4 -

motion to reconsider. As a result, we need not add ress the question of whether Contreras had to exhaust administrative remedies be fore bringing his § 2255 motion. We also grant Contreras’ motion to proceedIn Forma Pauperis. REVERSED and REMANDED for further proceedings. The mandate shall issue forthwith. ENTERED FOR THE COURT

David M. Ebel Circuit Judge