(HC) French v. Young ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 DARIN JEROME FRENCH, Case No. 1:19-cv-01306-EPG-HC 12 Petitioner, ORDER TO SHOW CAUSE WHY PETITION SHOULD NOT BE DISMISSED 13 v. FOR FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES 14 S. YOUNG, 15 Respondent. 16 17 Petitioner Darin Jerome French is a federal prisoner proceeding pro se with a petition for 18 writ of habeas corpus pursuant to 28 U.S.C. § 2241. In the petition, Petitioner asserts that he is 19 entitled to release to home confinement or a halfway house pursuant to the changes enacted 20 under the First Step Act. 21 I. 22 DISCUSSION 23 Rule 4 of the Rules Governing Section 2254 Cases1 requires preliminary review of a 24 habeas petition and allows a district court to dismiss a petition before the respondent is ordered 25 to file a response, if it “plainly appears from the petition and any attached exhibits that the 26 petitioner is not entitled to relief in the district court.” 27 1 The Rules Governing Section 2254 Cases apply to § 2241 habeas petitions. See Rule 1(b) of the Rules Governing Section 2254 Cases (“The district court may apply any or all of these rules to a habeas corpus petition not covered 1 “As a prudential matter, courts require that habeas petitioners exhaust all available 2 | judicial and administrative remedies before seeking relief under § 2241.” Ward v. Chavez, 678 3 | F.3d 1042, 1045 (9th Cir. 2012) (citations omitted). The exhaustion requirement is subject to 4 | waiver in § 2241 proceedings if pursuing available remedies would be futile. Id. The Federal 5 | Bureau of Prisons (“BOP”) Administrative Remedy Program is set forth at 28 C.F.R. § 542.10 et 6 | seq. 7 Here, it appears that Petitioner has failed to take any action to complete the BOP’s 8 | Administrative Remedy Program. The petition states that Petitioner “has overstayed his release 9 | date by months and months, and exhaustion does not provide a remedy (illusory).” (ECF No. 1 at 10 | 5). However, the fact that Petitioner believes he should have been released earlier based on 11 | changes enacted under the First Step Act does not establish that pursuing administrative relief 12 | would be futile. Petitioner does not demonstrate that an official policy of the BOP would deny 13 | him the benefits of the changes enacted under the First Step Act. See Ward, 678 F.3d at 1046 14 | (“Because of the existence of official BOP policy .. . exhaustion would be futile[.]’”) 15 I. 16 ORDER 17 Accordingly, IT IS HEREBY ORDERED that Petitioner SHALL SHOW CAUSE why 18 | the petition should not be dismissed for failure to exhaust administrative remedies within 19 | THIRTY (30) days from the date of service of this order. 20 Petitioner is forewarned that failure to follow this order may result in dismissal of the 21 | petition pursuant to Federal Rule of Civil Procedure 41(b) (a petitioner’s failure to prosecute or 22 | to comply with a court order may result in a dismissal of the action). 23 IT IS SO ORDERED. 25| Dated: _ October 10, 2019 [Je hey — %6 UNITED STATES MAGISTRATE JUDGE 27 28