(HC) Rabago v. Thompson ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JOHN R. RABAGO, No. 2: 21-cv-1866 JAM KJN P 12 Petitioner, 13 v. FINDINGS AND RECOMMENDATIONS 14 PAUL THOMPSON, et al., 15 Respondents. 16 17 Petitioner is a federal prisoner, proceeding without counsel, with a petition for writ of 18 habeas corpus pursuant to 28 U.S.C. § 2241. Petitioner argues that he is entitled to credits under 19 the First Step Act. In particular, petitioner argues that he is entitled to 390 days of earned time 20 credits toward his early release based on 780 days of prison work. Petitioner argues that with 21 application of these credits, his release date is December 15, 2022. 22 Pending before the court is respondent’s motion to dismiss. (ECF No. 8.) For the reasons 23 stated herein, the undersigned recommends that respondent’s motion to dismiss be granted. 24 Background 25 On December 16, 2019, petitioner plead guilty to conspiracy against rights in violation of 26 18 U.S.C. § 241 and deprivation of rights under color of law in violation of 18 U.S.C. § 242. 27 (ECF No. 8-1 at 8.) On July 15, 2020, petitioner was sentenced to 48 months in federal custody, 28 followed by a 4-year term of supervised release and a $125 special assessment. (Id. at 11-12.) 1 Petitioner’s full release term date is August 24, 2024. (ECF No. 8-2 at 16.) His projected 2 release date is January 21, 2024 (assuming good conduct time). (Id.) 3 On October 8, 2021, petitioner filed the pending habeas corpus petition pursuant to 28 4 U.S.C. § 2241 arguing that he is entitled to credits under the First Step Act. (ECF No. 1.) 5 On December 19, 2021, respondent filed the pending motion to dismiss. (ECF No. 8.) 6 Respondent moves to dismiss the petition for lack of Article III standing and ripeness, lack of 7 jurisdiction under 28 U.S.C. § 2241 and for failure to exhaust administrative remedies. (Id.) 8 On January 18, 2021, petitioner filed an opposition to the motion to dismiss. (ECF No. 9.) 9 For the reasons stated herein, the undersigned recommends that respondent’s motion to 10 dismiss be granted. 11 Discussion 12 The First Step Act 13 The First Step Act was signed into law on December 21, 2018. Pub. L. No. 115-391, 132 14 Stat. 5194 (2018). The relevant portions of the First Step Act allow eligible prisoners to earn time 15 credits against their sentences for successfully completing certain “recidivism reduction 16 programming” or “productive activities.” 18 U.S.C. § 3632(d)(4). The Attorney General was 17 allowed 210 days after the First Step Act was enacted to develop and publish the Risk 18 Assessment Needs system, which BOP must use as a guide to implement the programs. 18 19 U.S.C. § 3632(a). The Attorney General published the Risks and Needs Assessment on July 19, 20 2019. The BOP then had 180 days, or until January 15, 2020, to implement the system, complete 21 inmate risk assessments, and then begin to assign prisoners to appropriate evidence-based 22 recidivism reduction programs. 18 U.S.C. § 3621(h). 23 Thereafter BOP was given an additional two years, or until January 15, 2022, to phase in 24 programming and provide “evidenced based recidivism reduction programs and productive 25 activities for all prisoners.” 18 U.S.C. § 3621(h)(2)(A-B). Moreover, during this “phase-in” 26 period the BOP was empowered to exercise its own discretion as to how and when to expand 27 programs and activities, as well as offer the system’s incentives and rewards as of the date of 28 enactment of the First Step Act: 1 Beginning on the date of enactment of this subsection, the Bureau of Prisons may begin to expand any evidence-based recidivism 2 reduction programs and productive activities that exist at a prison as of such date, and may offer to prisoners who successfully participate 3 in such programs and activities the incentives and rewards described in subchapter D. 4 5 § 3621(h)(4) (emphasis added). 6 Ripeness 7 The ripeness doctrine is “drawn both from Article III limitations on judicial power and 8 from prudential reasons for refusing to exercise jurisdiction.” Nat’l Park Hosp. Ass'n v. Dep't of 9 the Interior, 538 U.S. 803, 808 (2003) (quoting Reno v. Cath. Soc. Servs., Inc., 509 U.S. 43, 57 10 n.18 (1993)). It “is to prevent the courts, through premature adjudication, from entangling 11 themselves in abstract disagreements” when those disagreements are premised on “contingent 12 future events that may not occur as anticipated, or indeed may not occur at all.” Thomas v. Union 13 Carbide Agric. Prods. Co., 473 U.S. 568, 580-81 (1985) (citations omitted); Wolfson v. Brammer, 14 616 F.3d 1045, 1057 (9th Cir. 2010); see also Simmonds v. INS, 326 F.3d 351, 357 (2d Cir. 15 2003) (evaluating ripeness in the context of a habeas petition, stating “[p]rudential ripeness is ... a 16 tool that courts may use to enhance the accuracy of their decisions and to avoid becoming 17 embroiled in adjudications that may later turn out to be unnecessary or may require premature 18 examination”). 19 The majority of courts that have considered claims regarding the BOP’s alleged failure to 20 award earned time credits under the First Step Act have concluded that these claims are not ripe at 21 this time because the BOP has until January 15, 2022, to “phase-in” the evidence-based 22 recidivism programs and productive activities for all prisoners. Khouanmany v. Gutierrez, 2021 23 WL 4394591, at *4 (C.D. Cal. Aug. 2, 2021) (“The majority of courts to have considered claims 24 regarding the BOP’s failure to award earned time credits under the First Step Act have concluded 25 that such claims are not ripe at this time because the BOP has until January 15, 2022, to “phase- 26 in” the evidence-based recidivism reduction programs and productive activities for all 27 prisoners.”) (citing Novotny v. Yankton FPC, Warden, 2021 WL 3089287, at *1 (D. S.D. July 21, 28 2021) (inmates do not have standing to seek an order requiring the BOP to apply earned time 1 credits toward prerelease custody before January 15, 2022); Diaz v. Warden, FCI-Ray Brook, 2 2021 WL 3032694, at *2-3 (N.D. N.Y. July 19, 2021) (challenge to BOP’s calculation of earned 3 time credit under the First Step Act was not ripe for review); Hand v. Barr, 2021 WL 392445, at 4 *5 (E.D. Cal. Feb. 4, 2021) (“because the Act does not require BOP to provide evidence-based 5 recidivism reduction programs and productive activities for all prisoners until January 2022, the 6 Court finds that petitioner’s claims regarding earned time credits and evidence-based recidivism 7 reduction programs are not ripe”), findings and recommendation adopted by 2021 WL 1853295, 8 at *2 (E.D. Cal. May 10, 2021) (given that the regulations governing the First Step Act time 9 credits have yet to be codified, the court agreed that the petitioner’s claims regarding First Step 10 Act time credits were not ripe); Cohen v. United States, 2021 WL 1549917, at *3 (S.D. N.Y. Apr. 11 20, 2021) (claims challenging calculation of earned time credits under the First Step Act was not 12 ripe); Kennedy-Robey v. FCI Pekin, 2021 WL 797516, at *3-4 (C.D. Ill. Mar. 2, 2021) (“The use 13 of the word ‘may’ indicates that, while it is permissible for the BOP to award time credits under 14 the statute at any time after the date of enactment, the BOP is not required to do so”; thus, the 15 petitioner did not have standing to demand that the BOP apply her time credits as she 16 calculated)); Fair v. Thompson, 2022 WL 183429 (E.D. Cal. Jan. 20, 2022) (challenges to certain 17 BOP policies regarding the First Step Act and BOP’s application of the Act dismissed as not 18 ripe). 19 The undersigned agrees with the reasoning of the courts cited above and finds that 20 petitioner’s claim for credits under the First Step Act is not ripe. Once the BOP applies First Step 21 Act credits or fails to properly apply such credits, petitioner may file a new petition for relief. 22 In the petition, petitioner cites Goodman v. Ortiz, 2020 WL 5015613 (D.N.J. Aug. 25, 23 2020), where the district court found that the BOP need not wait until January 15, 2022, to 24 implement the at-issue sections of the First Step Act. However, the undersigned joins the 25 numerous courts that have respectfully disagreed with the Goodman decision. Diaz v. Warden, 26 2021 WL 3032694, at *2-3 (N.D. N.Y. July 19, 2021) (acknowledging Goodman but noting that 27 the majority of courts disagree with that opinion); Holt v. Warden, 2021 WL 1925503, at *5 (D. 28 S.D. May 13, 2021) (collecting cases that have disagreed with the Goodman opinion); Kennedy- 1 |} Robey, 2021 WL 797516, at *4 (C.D. Ill. March 2, 2021) (“If immediate implementation were 2 || mandated, Congress would have used the word ‘shall’ and not ‘may’ in 18 U.S.C. § 3621(h)(4)). 3 Respondent's Remaining Arguments 4 Respondent also argues petitioner must first exhaust his administrative remedies before 5 || bringing a federal action. There is some disagreement among the district courts as to whether 6 || exhaustion of a claim for time credits under the First Step Act is required prior to suit. Compare 7 | Goodman v. Ortiz, 2020 WL 5015613, at *3, 2020 U.S. Dist. LEXIS 153874, at *5-6 (exhaustion 8 | not required) with O'Bryan v. Cox, 2021 WL 98324] at *1-3, 2021 U.S. Dist. LEXIS 50055 at 9 || *2-7(D.S.D. Jan. 12, 2021) (exhaustion required). Because the court finds that the instant 10 || petition is not ripe and must be dismissed, it declines to address the exhaustion argument at this 11 | time. 12 Because the undersigned finds that petitioner’s claim is not ripe, there 1s no need to 13 || address the other grounds raised in respondent’s motion to dismiss. 14 Accordingly, IT IS HEREBY RECOMMENDED that respondent’s motion to dismiss 15 || (ECF No. 8) be granted on the grounds that petitioner’s claim is not ripe. 16 These findings and recommendations are submitted to the United States District Judge 17 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days 18 || after being served with these findings and recommendations, any party may file written 19 || objections with the court and serve a copy on all parties. Such a document should be captioned 20 | “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 21 || objections shall be filed and served within fourteen days after service of the objections. The 22 || parties are advised that failure to file objections within the specified time may waive the right to 23 || appeal the District Court’s order. Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 24 || Dated: February 10, 2022 Foci) Aharon 2% KENDALL J. NE Rab1866 fr UNITED STATES MAGISTRATE JUDGE 27 28