(HC) Hernandez-Cano v. Warden ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 WILMER A. HERNANDEZ-CANO, No. 1:23-cv-00216-HBK (HC) 12 Petitioner, ORDER GRANTING RESPONDENT’S 13 v. MOTION TO DISMISS1 14 WARDEN, FCI MENDOTA, 15 Respondent. 16 17 Petitioner Wilmer A. Hernandez-Cano (“Petitioner”), a former federal inmate, initiated 18 this action on February 6, 2023, by filing a pro se petition for writ of habeas corpus under 28 19 U.S.C. § 2241 while he was incarcerated at Federal Correctional Institution (“FCI”) Mendota, 20 located in Fresno County, California, which is within the venue and jurisdiction of this Court. 21 (Doc. No. 1, “Petition”). The Petition asserts a single claim: the Bureau of Prisons (“BOP”) 22 unlawfully restricts “non-U.S. citizens” from applying earned time credits (FTCs) in 23 contravention of the First Step Act. (Doc. No. 1 at 2); see 18 U.S.C. § 3632(d)(4)(A), (C) 24 (providing that time credits earned from completion of evidence-based recidivism reduction 25 programming productive activities shall be applied toward time in prerelease custody or 26 supervised release). 27 1 Both parties have consented to the jurisdiction of a magistrate judge, in accordance with 28 U.S.C. § 28 636(c)(1). (Doc. No. 13). 1 In response, Respondent filed a Motion to Dismiss with Appendix on May 8, 2023, 2 arguing the Petition should be dismissed for reasons including lack of jurisdiction, failure to state 3 a claim, and failure to exhaust administrative remedies. (Doc. Nos. 14, 14-1). On October 3, 4 2023, the Court ordered Respondent to submit supplemental briefing addressing whether the 5 action is moot as it appeared Petitioner was released from custody on June 2, 2023. (Doc. No. 6 15). On October 13, 2023, Respondent filed a supplement to the Motion to Dismiss, confirming 7 that Petitioner had been released from custody on June 2, 2023. (Doc. Nos. 16, 16-1). Therefore, 8 Respondent seeks dismissal of the Petition as moot. (Doc. No. 16 at 2). 9 I. BACKGROUND 10 A. Procedural History 11 In 2020, Petitioner pled guilty in the Eastern District of Kentucky (EDKY) to conspiracy 12 to distribute 500 grams or more of cocaine in violation of 21 U.S.C. § 846, possession with intent 13 to distribute illicit drugs in violation of 21 U.S.C. § 841(a)(1), and for being an alien in 14 possession of a firearm in violation of 18 U.S.C. § 922(g)(5)(A); and he was sentenced to serve 15 an aggregate term of 60 months of federal incarceration and a four-year term of supervised 16 release. See United States v. Hernandez, 5:19-cr-00146-GFVT-MAS-2, Crim. Doc. Nos. 88, 124, 17 134, 137 (E.D. Ky.)2; (Doc. No. 14-1). At the time Petitioner filed the Petition, he was 18 incarcerated in FCI Mendota. Petitioner was released from incarceration on June 2, 2023—after 19 he filed the instant Petition demanding the recalculation of his earned time credit under the First 20 Step Act. (Doc. No. 16 at 1; Doc. No. 16-1). 21 B. The First Step Act 22 The First Step Act (“FSA”), enacted December 21, 2018, provided for considerable 23 changes to the federal criminal code, including several prison and sentencing reforms. First Step 24 Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194 (2018). One such reform under the First Time 25 Act entailed the implementation of Federal Time Credits (“FTCs”). 18 U.S.C. § 3632(d)(4)(A). 26 Essentially, an inmate “who successfully completed evidence-based recidivism reduction 27 2 The undersigned cites to the record in Petitioner’s underlying EDKY criminal cases as “Crim. Doc. No. 28 _.” 1 programming or productive activities” “shall earn 10 days of time credits for every 30 days of 2 successful participation.” Id. These FTCs earned by eligible inmates are “applied toward time in 3 prerelease custody or supervised release.” § 3632(d)(4)(C). 4 Additionally, the FSA authorized the BOP to use a risk and needs assessment system, 5 “PATTERN,” and designate a prisoner with a minimum, low, medium, or high-risk score. United 6 States v. DeCaro, No. 2022 WL 4395905, at *1 n.1 (E.D. Mo. Aug. 23, 2022). Inmates who 7 receive a minimum or low-risk score over two consecutive assessments earn an additional five 8 days of time credits for every 30 days of successful participation in evidence-based recidivism 9 reduction programming (EBRR programming) or productive activities (PAs). 18 U.S.C. § 10 3632(d)(4)(A)(ii); Orihuela v. Engleman, 2022 WL 18106676, at *1 (C.D. Ca. Nov. 3, 2022) (“A 11 prisoner’s PATTERN score may affect the rate at which he earns FTC for his participation in 12 EBRRs and Pas.”). 13 Inmates may begin earning FTCs once their term begins, but an inmate cannot earn FTCs 14 for programming or activities in which he or she participated in prior to the enactment of the FSA 15 on December 21, 2018. 28 C.F.R. § 523.42. An inmate can earn retroactive application of FTCs 16 for EBRR programming or PAs in which he or she participated in from December 21, 2018, to 17 January 13, 2022. Id. 18 II. APPLICABLE LAW AND ANALYSIS 19 Under Rule 4, if a petition is not dismissed at screening, the judge “must order the 20 respondent to file an answer, motion, or other response” to the petition. R. Governing 2254 Cases 21 4. The Advisory Committee Notes to Rule 4 state that “the judge may want to authorize the 22 respondent to make a motion to dismiss based upon information furnished by respondent.” A 23 motion to dismiss a petition for writ of habeas corpus is construed as a request for the court to 24 dismiss under Rule 4 of the Rules Governing Section 2254 Cases. O’Bremski v. Maass, 915 F.2d 25 418, 420 (9th Cir. 1990). Under Rule 4, a district court must dismiss a habeas petition if it 26 “plainly appears” that the petitioner is not entitled to relief. See Valdez v. Montgomery, 918 F.3d 27 687, 693 (9th Cir. 2019); Boyd v. Thompson, 147 F.3d 1124, 1127 (9th Cir. 1998). 28 Under Article III, Section II of the Constitution, a federal court’s jurisdiction is limited to 1 adjudication of “live” cases and controversies. See Hollingsworth v. Perry, 570 U.S. 693, 705 2 (2013) (“Article III demands that an actual controversy persist throughout all stages of 3 litigation.”) (internal quotation marks omitted); see also Arizonans for Official English v. 4 Arizona, 520 U.S. 43, 67 (1997) (Article III's “cases” and “controversies” limitation requires that 5 “an actual controversy . . . be extant at all stages of review, not merely at the time the complaint is 6 filed,”) (internal quotation marks omitted). Federal courts consider various doctrines, including 7 “standing,” “ripeness,” and “mootness” to ascertain whether a meets the “case and controversy” 8 requirement. See Poe v. Ullman, 367 U.S. 497, 502-505 (1961). To maintain a claim, a litigant 9 must continue to have a personal stake in all stages of the judicial proceeding. Abdala v. INS, 488 10 F.3d 1061, 1063 (9th Cir. 2007) (internal citation omitted). A case must be dismissed if it 11 becomes moot at any stage. See City of Mesquite v. Aladdin’s Castle, 455 U.S. 283, 288 (1982). 12 Absent collateral consequences, a “habeas petition does not continue to present a live controversy 13 once the petitioner is released from custody.” Abdala, 488 F.3d at 1064; see also Kelley v. 14 Brewer, 2023 WL 2992823, at *3 (E.D. Cal. Apr. 18, 2023) (“there is nothing capable of being 15 redressed by a favorable judicial decision because the BOP has already calculated his FSA credits 16 and released [the petitioner]. In other words, petitioner’s case is moot absent demonstrable 17 collateral consequences arising from BOP’s calculation of his FSA credits.”); Fower v. Birkholz, 18 2023 WL 3828775, at *1 (C.D. Cal. May 4, 2023) (“Petition is moot because Petitioner obtained 19 the relief he sought in the Petition – release from BOP custody after the application of his FSA 20 credits.”). 21 Because Petitioner is no longer in BOP custody and there are no collateral consequences 22 the Court cannot grant any relief on Petitioner’s claim. Dominguez v. Kernan, 906 F.3d 1127, 23 1132 (9th Cir. 2018); Fender v. U.S. Bureau of Prisons, 846 F.2d 550, 555 (9th Cir. 1988). Thus, 24 the Petition is moot, which leaves this Court without jurisdiction to consider any claims raised in 25 the Petition. 26 //// 27 //// 28 //// 1 Accordingly, it is ORDERED: 2 1. Respondent’s Motion to Dismiss (Doc. No. 14) is GRANTED. 3 2. The Petition for Writ of Habeas Corpus (Doc. No. 1) is DISMISSED as moot. 4 3. The Clerk of Court is directed to terminate any pending motions and close this case. 5 ° | Dated: _ October 17,2023 Mile. Th fares Hack 7 HELENA M. BARCH-KUCHTA UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28