(HC) Florez v. Warden ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DAGOBERTO LOPEZ FLOREZ, No. 1:23-cv-00307-HBK (HC) 12 Petitioner, ORDER GRANTING RESPONDENT’S MOTION TO DISMISS1 13 v. (Doc. No. 8) 14 WARDEN, FCI MENDOTA, 15 Respondent. 16 17 Petitioner Dagoberto Lopez Florez (“Petitioner”), a former federal inmate, is proceeding 18 pro se on his petition for writ of habeas corpus under 28 U.S.C. § 2241, filed while he was 19 incarcerated at Federal Correctional Institution (“FCI”) Mendota, located in Fresno County, 20 California, which is within the venue and jurisdiction of this Court. (Doc. No. 1, “Petition”). The 21 Petition challenges the execution of Petitioner’s sentence. (Id. at 6). Specifically, the Petition 22 raises one claim: the Bureau of Prisons (“BOP”) unlawfully excluded Petitioner from applying 23 earned time credits (FTCs) due to his immigration detainer, which contravenes the First Step Act. 24 (Id. at 6); see 18 U.S.C. § 3632(d)(4)(A), (C) (providing that time credits earned from completion 25 of evidence-based recidivism reduction programming productive activities shall be applied 26 toward time in prerelease custody or supervised release). Petitioner requests the Court to issue an 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. 10). 1 injunction compelling the BOP to calculate and apply his earned time credits. (Doc. No. 1 at 7). 2 In response, Respondent filed a Motion to Dismiss with Appendix on June 15, 2023. 3 (Doc. No. 8, 8-1). Respondent argues the Court lacks jurisdiction to consider the Petition because 4 Petitioner’s release from custody moots the Petition; and in the alternative, dismissal is 5 mandatory because Petitioner did not exhaust his administrative remedies. (Doc. No. 8 at 2-4). 6 Petitioner did not file a response to the motion, nor request an extension of time to respond, and 7 the time for doing so has expired. (See Doc. No. 6 at ¶ 4, advising Petitioner that he has twenty- 8 one (21) days to file a response if Respondent files a motion to dismiss). For the reasons set forth 9 more fully herein, the Court grants Respondent’s Motion to Dismiss. 10 I. BACKGROUND 11 A. Procedural History 12 In 2011, Petitioner pled guilty in the Middle District of Florida for conspiracy to possess 13 with intent to distribute five kilograms or more of a mixture or substance containing a detectable 14 amount of cocaine while on board a vessel subject to U.S. jurisdiction in violation of 46 U.S.C. 15 §§§ 70503(a)(1), 70506(a), 70506(b) and 21 U.S.C. § 960(b)(1)(B)(ii); and he was sentenced to 16 serve an term of 168 months of federal incarceration. See United States v. Florez et al., 8:11-cr- 17 00363-SDM-CPT-1, Crim. Doc. Nos. 100, 128 (M.D. FL.).2 At the time Petitioner commenced 18 this action, he was incarcerated in FCI Mendota. Petitioner was released from BOP custody on 19 June 2, 2023. At the time Respondent filed the Motion to Dismiss, Petitioner was being held at 20 Winn Correctional Center awaiting deportation. (Doc. No. 8 at 2). 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 MDFL 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.” Id. 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 //// 1 A. Mootness 2 Under Article III, Section II of the Constitution, a federal court’s jurisdiction is limited to 3 adjudication of “live” cases and controversies. See Hollingsworth v. Perry, 570 U.S. 693, 705 4 (2013) (“Article III demands that an actual controversy persist throughout all stages of 5 litigation.”) (internal quotation marks omitted); see also Arizonans for Official English v. 6 Arizona, 520 U.S. 43, 67 (1997) (Article III's “cases” and “controversies” limitation requires that 7 “an actual controversy . . . be extant at all stages of review, not merely at the time the complaint is 8 filed,”) (internal quotation marks omitted). Federal courts consider various doctrines, including 9 “standing,” “ripeness,” and “mootness” to ascertain whether a meets the “case and controversy” 10 requirement. See Poe v. Ullman, 367 U.S. 497, 502-505 (1961). To maintain a claim, a litigant 11 must continue to have a personal stake in all stages of the judicial proceeding. Abdala v. INS, 488 12 F.3d 1061, 1063 (9th Cir. 2007) (internal citation omitted). A case must be dismissed if it 13 becomes moot at any stage. See City of Mesquite v. Aladdin’s Castle, 455 U.S. 283, 288 (1982). 14 Absent collateral consequences, a “habeas petition does not continue to present a live controversy 15 once the petitioner is released from custody.” Abdala, 488 F.3d at 1064; see also Kelley v. 16 Brewer, 2023 WL 2992823, at *3 (E.D. Cal. Apr. 18, 2023) (“there is nothing capable of being 17 redressed by a favorable judicial decision because the BOP has already calculated his FSA credits 18 and released [the petitioner]. In other words, petitioner’s case is moot absent demonstrable 19 collateral consequences arising from BOP’s calculation of his FSA credits.”); Fower v. Birkholz, 20 2023 WL 3828775, at *1 (C.D. Cal. May 4, 2023) (“Petition is moot because Petitioner obtained 21 the relief he sought in the Petition – release from BOP custody after the application of his FSA 22 credits.”). 23 Here, Petitioner no longer is in BOP custody. Thus, the operative Petition is moot. 24 Because the Petition is moot, the Court lacks jurisdiction to consider any claims raised in the 25 Petition. 26 Accordingly, it is ORDERED: 27 1. Respondent’s Motion to Dismiss (Doc. No. 8) is GRANTED. 28 2. The Petition for Writ of Habeas Corpus (Doc. No. 1) is DISMISSED as moot. 1 3. The Clerk of Court is directed to terminate any pending motions and close this case. 2 >| Dated: _ October 24, 2023 lew □□□ fareh fackt 4 HELENA M. BARCH-KUCHTA ; UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28