(HC) Rios v. Thompson ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MARCOS RIOS, No. 2:21-cv-01059-KJM-CKD P 12 Petitioner, 13 v. FINDINGS AND RECOMMENDATIONS 14 PAUL THOMPSON, 15 Respondent. 16 17 Petitioner, a federal prisoner proceeding pro se, has filed a petition for a writ of habeas 18 corpus pursuant to 28 U.S.C. § 2241 in this judicial district, where he is confined. Petitioner has 19 paid the filing fee for this action. On June 29, 2021, the court ordered respondent to file an 20 answer to the petition or a motion to dismiss within 60 days. ECF No. 5. Respondent filed a 21 motion to dismiss the § 2241 petition on August 27, 2021. ECF No. 7. Petitioner filed an 22 opposition to respondent’s motion to dismiss. ECF No. 9. For the reasons explained below, the 23 undersigned recommends granting respondent’s motion to dismiss based on lack of ripeness. 24 I. Factual and Procedural History 25 A review of the docket of the Southern District of California, of which this court takes 26 judicial notice, indicates that petitioner plead guilty to importing methamphetamine and was 27 //// 28 //// 1 sentenced to 24 months of incarceration followed by 3 years of supervised release.1 See ECF 2 No. 7-2 at 2-7 (docket sheet for Case No. 3:19-cr-01597-CAB). Petitioner was ordered to self- 3 surrender to the Bureau of Prisons at FCI Sheridan on June 22, 2020 to commence serving his 4 sentence. See ECF No. 50 in Case No. 3:19-cr-01597 (S.D. Cal. April 16, 2020). 5 In the present § 2241 application, petitioner argues that he has sufficient earned time 6 credits (“ETCs”) to be transferred immediately to home confinement pursuant to the First Step 7 Act of 2018 (“FSA”). ECF No. 1 at 2. Specifically, petitioner calculates that he is entitled to 273 8 days of additional earned time credits resulting in a projected early release date of September 15, 9 2021. ECF No. 1 at 23. Absent these earned time credits, petitioner’s expected release date is 10 February 20, 2022 which includes good conduct credit that has already been applied to 11 petitioner’s sentence. ECF No. 1 at 23. By way of relief, petitioner requests that the court order 12 his immediate release “to home confinement, [a] halfway house, or early release to supervised 13 release.” ECF No. 1 at 8. 14 Petitioner acknowledges that he has not exhausted his administrative remedies with 15 respect to his claim for relief and asserts that he should be excused from doing so because it is 16 futile and because his claim only concerns an issue of statutory construction. ECF No. 1 at 2. 17 According to petitioner, the Bureau of Prisons has adopted an inflexible policy in regards to 18 awarding these additional FSA time credits. Id. Notwithstanding this argument, petitioner 19 attaches copies of his administrative grievances submitted to his BOP Case Manager, the informal 20 level of administrative review, and the Warden of FCI Herlong where he is confined. ECF No. 1 21 at 15-18. All administrative responses to petitioner’s request indicate that the “Bureau of Prisons 22 has until January 15, 2022, to fully phase in First Step Act time credits.” ECF No. 1 at 18. 23 Respondent moves to dismiss the petition based on lack of Article III standing and 24 ripeness, lack of jurisdiction pursuant to § 2241, and petitioner’s failure to exhaust his 25 administrative remedies. ECF No. 7. According to respondent, the First Step Act contains three 26 27 1 “[C]ourts routinely take judicial notice of documents filed in other courts ... to establish the fact of such litigation and related filings.” Kramer v. Time Warner Inc., 937 F.2d 767, 774 (2d Cir. 28 1991) (citation omitted). 1 relevant deadlines for implementing a system of additional time credits in order to reduce federal 2 prisoners’ period of incarceration based on their risk of recidivism. ECF No. 7 at 3. The “Bureau 3 of Prisons has two years to ‘phase-in’ programming and provide ‘evidenced-based recidivism 4 reduction programs and productive activities for all prisoners . . . .’” ECF No. 7 at 3 (quoting 18 5 U.S.C. § 3621(h)(2)(A-B)). Because the last deadline of January 15, 2022, has yet to pass, BOP 6 has not rendered any decision regarding petitioner’s earned time credits pursuant to the FSA. 7 ECF No. 7 at 4. As a result, respondent argues that petitioner lacks standing and his habeas 8 application is not yet ripe for adjudication. ECF No. 7 at 4. Respondent further argues that since 9 the BOP has the sole discretionary authority to award the earned time credits, this court lacks any 10 statutory jurisdiction to grant petitioner the relief requested. Id. Lastly, respondent submits that 11 the habeas petition should be dismissed because petitioner has not exhausted his administrative 12 remedies. ECF No. 7 at 5. 13 In support of the motion to dismiss, respondent submitted a declaration from Jess Pino, a 14 Correctional Programs Specialist with the Bureau of Prisons, who reviewed petitioner’s inmate 15 records. ECF No. 7-1. Mr. Pino indicates that petitioner “has been tentatively approved for 16 transfer to community confinement in December of this year” based upon his current projected 17 good conduct time release date of February 20, 2022. ECF No. 7-1 at 2. Mr. Pino further 18 submitted evidence indicating that petitioner has not fully exhausted his administrative grievance 19 related to awarding FSA earned time credits because he did not appeal the Warden’s denial to the 20 Regional Office. ECF No. 7-1 at 3. Petitioner has been designated as a low risk of recidivism 21 based upon the BOP’s Prisoner Assessment Tool Targeting Estimated Risk and Needs. ECF No. 22 7-1 at 4-5. “With respect to his needs assessment, BOP has determined [p]etitioner has needs in 23 the following areas: (1) Substance Abuse, (2) Trauma, (3) Work, (4) Cognitions, (5) Antisocial 24 Peers, and (6) Trauma.” ECF No. 7-1 at 10. 25 By way of opposition, petitioner submits that he has “prima facie standing” as an 26 incarcerated individual since he is asserting that he is entitled to be immediately released from 27 confinement. ECF No. 8 at 3. Petitioner acknowledges that the FSA gave the BOP until January 28 15, 2022 to fully implement sufficient programming and activities for all prisoners to participate 1 in to qualify for earned time credits, this does not mean that BOP could wait to apply it to all 2 inmates until the final deadline. ECF No. 8 at 3-4. “Respondent bizarrely mistakes the Act’s 3 deadline for the government to complete the process of providing every last prisoner with the 4 opportunity to qualify for a reduction of sentence as permission to overincarcerate certain 5 prisoners like [p]etitioner who already have qualified for reductions under the Act.” ECF No. 8 at 6 5. According to petitioner, this result is contrary to Congressional intent and the very purpose of 7 the First Step Act. Id. As a result of this immediate harm to petitioner, he argues that he should 8 be excused from the exhaustion requirement. Id. In response to the challenge to the court’s 9 jurisdiction, petitioner counters that BOP has no discretion in awarding the earned time credit 10 “once a ‘low’ or ‘minimum’ PATTERN score inmate has earned time credits.” ECF No. 8 at 14. 11 Rather, BOP only has discretion in choosing what form of prerelease custody is appropriate for 12 such inmate. Id. Therefore, the court should grant petitioner’s habeas application seeking his 13 immediate release from his present confinement. 14 II. Legal Standards 15 A. Section 2241 Relief 16 Federal inmates have two avenues for pursuing habeas corpus relief. First, a challenge to 17 a federal prisoner’s conviction or sentence can be raised via a motion to vacate, set aside, or 18 correct the sentence pursuant to 28 U.S.C. § 2255. Section 2255 motions are filed in the judicial 19 district where the conviction occurred. Alternatively, a federal inmate challenging the manner, 20 location, or conditions involved in the execution of their sentence, may file a habeas corpus 21 petition pursuant to 28 U.S.C. § 2241. Hernandez v. Campbell, 204 F.3d 861, 864 (9th Cir. 22 2000). Jurisdiction over a § 2241 petition lies in the district of the prisoner’s confinement. 23 B. First Step Act 24 The First Step Act of 2018 (“FSA”) made several important changes to the duration of 25 federal prison sentences. See Pub. L. No. 115-391, 132 Stat. 5194. As relevant to the pending 26 habeas petition, it created an evidence-based recidivism reduction program that incentivizes 27 inmates to participate in and complete programs and productive activities by awarding them, inter 28 alia, “10 days of time credits…” and “an additional 5 days of time credits for every 30 days of 1 successful participation” if the prisoner is classified as a minimum or low risk of recidivism. 18 2 U.S.C. § 3632(d)(4). In order to apply these earned time credits, the BOP was first required to 3 develop a risk and needs assessment system within 210 days after enactment of the FSA. 18 4 U.S.C. § 3632(a). As described in Mr. Pino’s declaration, this assessment tool given the acronym 5 PATTERN, was created on July 19, 2019. See ECF No. 7-1 at 4. Within 180 days thereafter, or 6 by January 15, 2020, the BOP was required to conduct an initial intake risk and needs assessment 7 for each prisoner and “begin to assign prisoners to appropriate evidence-based recidivism 8 reduction programs based on that determination.” 18 U.S.C. 3621(h). The FSA also created a 9 phase-in period of up to 2 years following the initial risk and needs assessment for the BOP to 10 “provide such evidence-based recidivism reduction programs and productive activities for all 11 prisoners.” 18 U.S.C. § 3621(h)(2). “During the 2-year period…, the priority for such programs 12 and activities shall be accorded based on a prisoner’s proximity to release date.” 18 U.S.C. § 13 3621(h)(3). Thus, by January 15, 2022, the BOP is required to provide the necessary recidivism 14 reduction programs and productive activities for all prisoners to earn additional time credits to 15 reduce their sentences under the FSA if they meet the other relevant criteria. 16 III. Analysis 17 Against this federal statutory backdrop, the court turns to the specific issues raised in 18 respondent’s motion to dismiss. Respondent challenges the pending habeas petition on the 19 grounds that it is not ripe for judicial review because Congress allowed the BOP a two year 20 phase-in period that does not end until January 15, 2022. 21 According to Article III of the United States Constitution, federal courts have jurisdiction 22 over “cases” and “controversies.” As a threshold jurisdictional matter, parties are required to 23 have an actual controversy that “make[s] resolution of the controverted issue a practical 24 necessity.” See Poe v. Ullman, 367 U.S. 497, 502-05 (1961). This requirement of ripeness serves 25 “to prevent the courts, through avoidance of premature adjudication, from entangling themselves 26 in abstract disagreements over administrative policies, and also to protect the agencies from 27 judicial interference until an administrative decision has been formalized and its effects felt in a 28 concrete way by the challenging parties.” Abbott Laboratories v. Gardner, 387 U.S. 136, 148-49 1 (1967), abrogated on other grounds by Califano v. Sanders, 430 U.S. 99 (1977). A claim is not 2 yet ripe for judicial review “if it involves contingent future events that may not occur as 3 anticipated, or indeed may not occur at all.” United States v. Streich, 560 F.3d 926, 931 (9th Cir. 4 2009) (quoting Thomas v. Union Carbide Agr. Prods. Co., 473 U.S. 568, 580-81 (1985)). 5 In this case, the BOP is not required to fully implement the earned time credits until 6 January 15, 2022. This is prior to petitioner’s current release date of February 20, 2022, but after 7 the date petitioner says he should be released to home confinement, a halfway house, or 8 supervised release if the ETCs are applied to his sentence. While the FSA mandated giving 9 prisoners with impending release dates priority in participating in the programs and activities to 10 earn these time credits, at this juncture, the court has no way of knowing exactly how the BOP 11 will actually calculate petitioner’s earned time credits. Therefore, the issue before the court is an 12 abstract disagreement. As a result, this case is not ripe for adjudication because it hinges “upon 13 contingent future events that may not occur as anticipated….” Streich, 560 F.3d at 931. The 14 undersigned therefore recommends granting respondent’s motion to dismiss the pending § 2241 15 petition without prejudice based on lack of ripeness.2 In light of this recommendation and in the 16 interests of judicial economy, the undersigned finds it unnecessary to address the remaining 17 grounds raised in respondent’s motion to dismiss. 18 ///// 19 2 The court has read and considered the case of Goodman v. Ortiz, U.S. Dist. LEXIS 153874, 20 2020 WL 5015613 (D. N. Jersey August 25, 2020), which petitioner relies on to support his argument. As persuasive authority, the court is not bound to follow this decision. Indeed, the 21 majority of federal district court cases addressing the Goodman decision have reached a contrary result for a variety of reasons. See e.g., Cisneros-Gutierrez v. White, Case No. 1:21-cv-00441- 22 EPG-HC, 2021 WL 4460533 (E.D. Cal. Sept. 29, 2021) (Findings and Recommendations to 23 dismiss habeas petition without prejudice based on lack of ripeness); Depoister v. Birkholz, Civ. No. 21-684 (ECT/BRT), 2021 WL 3493692 (D. Minn. July 8, 2021) (dismissing habeas petition 24 due to lack of ripeness); Jones v. Hendrix, No. 2:20-CV-00247-ERE, 2021 WL 2402196 (E.D. Ark. June 11, 2021) (finding the habeas petition premature); Hand v. Warden of FCI Herlong, 25 Case No. 2:20-cv-2320-JAM-JDP, 2021 WL 1734517 (E.D. Cal. May 3, 2021) (order adopting Findings and Recommendations to dismiss habeas petition based on lack of standing and 26 ripeness); Fleming v. Joseph, Case No. 3:20cv5990-LC-HTC, 2021 WL 1669361 (N.D. FL April 27 7, 2021) (Report and Recommendation to dismiss habeas petition as premature and for lack of exhaustion); Kennedy-Robey v. FCI Pekin, C/A No. 20-1371, 2021 WL 797516, at *3–4 (C.D. 28 Ill. Mar. 2, 2021) (dismissing habeas petition as premature). 1 IV. Plain Language Summary for Pro Se Party 2 The following information is meant to explain this order in plain English and is not 3 || intended as legal advice. 4 After reviewing the provisions of the First Step Act, the undersigned has concluded that 5 || the BOP has until January 15, 2022 to apply any earned time credits to your sentence. Because 6 || this date is in the future and the court has no way of knowing exactly how BOP will apply the 7 || ETCs to your sentence, there is no current case or controversy for the court to resolve. The 8 | undersigned recommends granting respondent’s motion to dismiss your § 2241 petition. 9 If you disagree with this recommendation, you have 14 days to explain why it is not the 10 || correct result. Label your explanation “Objections to Magistrate Judge’s Findings and 11 || Recommendations.” The district court judge assigned to your case will review the matter and 12 || issue a final decision. 13 Accordingly, IT IS HEREBY RECOMMENDED that: 14 1. Respondent’s motion to dismiss (ECF No. 7) be granted. 15 2. Petitioner’s application for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 be 16 dismissed without prejudice based on lack of ripeness. 17 These findings and recommendations are submitted to the United States District Judge 18 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days 19 || after being served with these findings and recommendations, any party may file written 20 || objections with the court and serve a copy on all parties. Such a document should be captioned 21 || “Objections to Magistrate Judge’s Findings and Recommendations.” The parties are advised that 22 || failure to file objections within the specified time may waive the right to appeal the District 23 || Court’s order. Martinez v. YIst, 951 F.2d 1153 (th Cir. 1991). 24 | Dated: October 29, 2021 / □□ I / dle ae 25 CAROLYNK. DELANEY 2% UNITED STATES MAGISTRATE JUDGE 27 12/rios1059.mtd.2241.docx 28