Lokesh S. Tantuwaya v. Brian Birkholz ( 2024 )

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 CENTRAL DISTRICT OF CALIFORNIA 8 9 10 LOKESH S. TANTUWAYA, Case No. CV 24-02891-DMG (MAR) 11 Petitioner, 12 v. ORDER ACCEPTING FINDINGS AND RECOMMENDATION OF 13 BRIAN BIRKHOLZ, UNITED STATES MAGISTRATE JUDGE 14 Respondent. 15 16 Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition, the records 17 on file, and the Report and Recommendation of the United States Magistrate Judge. 18 The Court has reviewed de novo the portions of the Report to which objections have 19 been made. 20 The Report recommends the grant of the Petition and the recalculation of 21 Petitioner’s earned time credits (“ETCs”) under the First Step Act (“FSA”). [Doc. # 22 19.] Respondent’s objections to the Report [Doc. # 20] do not warrant a change to 23 the Magistrate Judge’s findings and recommendation. 24 Respondent objects to the Report’s finding about Petitioner’s participation in 25 FSA programming. Specifically, Respondent objects to the Report’s finding that 26 Petitioner “completed thirteen days of FSA programming between April 26 and May 27 9, [2023], even though Petitioner did not receive any ETCs as a result.” [Doc. # 20 at 1 | participate in the programming, but he received the ETCs covering that period “for 2 | doing nothing at all” and “nonetheless earned ETCs for those thirteen days, and those 3 | are included in his ETC calculation.” [Doc. # 20 at 5. 4 Respondent’s argument about these days does not undermine the Report’s 5 | findings and recommendation. It ultimately remains the case that “Respondent 6 | concedes that Petitioner did not have an opportunity to participate in programs 7 | between his sentencing date of December 9, 2022, until April 26, 2023, when he 8 | arrived at his designated institution|.|” (Ud. This delay of four and a half months ts 9 | “far longer than the ‘reasonable’ five-week period” found in another case discussed in 10 | the Report. [Doc. # at 7 (citing Stevens v. Jacquex, 2024 WI. 3200546, at *5 (D. Or. 11 | June 25, 2024).| Because Petitioner did not wait just “a month or two” for his 12 | opportunity to participate in programming, his ETCs should be calculated from his 13 | sentencing date. (/d. at 7-8 (citing Haihui v. Derr, 2023 WL 4086073, at *7 (D. Haw. 14 | June 20, 2023).) Thus, the Bureau of Prisons shall recalculate Petitioner’s ETCs from 15 | the date his sentence commenced on December 9, 2022. (Id. at 9.) 16 The Court accepts the findings and recommendation of the Magistrate Judge. 17 IT IS THEREFORE ORDERED that judgment be entered GRANTING 18 | Petitioner’s petition and ORDERING Respondent to recalculate Petitioner’s 19 | sentence utilizing December 9, 2022, as the correct date on which Petitioner became 20 | eligible to earn FSA credits.' 21 | DATED: November 15, 2024 22 ell Dn. □ 23 DOLLY MUGEE Chief United States District Judge 25 26 27 1 ‘The Court is not ordering Respondent to automatically award Petitioner with 52 credits for the 28 period from December 9, 2022 to May 9, 2023. Rather, the Court orders Respondent to award Petitioner with all credits he may have earned between December 9, 2022 to May 9, 2023.