(HC) Rodriguez v. Warden, F.C.I. Mendota ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JUAN RODRIGUEZ, No. 1:23-cv-00147-HBK (HC) 12 Petitioner, ORDER GRANTING RESPONDENT’S MOTION TO DISMISS1 13 v. (Doc. No. 12) 14 WARDEN, FCI MENDOTA, 15 Respondent. 16 17 Petitioner Juan Rodriguez (“Petitioner”), a federal inmate, is proceeding pro se on his 18 petition for writ of habeas corpus under 28 U.S.C. § 2241, filed while he was incarcerated at 19 Federal Correctional Institution (“FCI”) Mendota, located in Fresno County, California, which is 20 within the venue and jurisdiction of this Court. (Doc. No. 1, “Petition”). The Petition challenges 21 the execution of Petitioner’s sentence. (Id. at 6). Specifically, the Petition raises one claim: the 22 Bureau of Prisons (“BOP”) unlawfully excluded Petitioner from applying earned time credits 23 (FTCs) due to his immigration detainer, which contravenes the First Step Act. (Id.); see 18 24 U.S.C. § 3632(d)(4)(A), (C) (providing that time credits earned from completion of evidence- 25 based recidivism reduction programming productive activities shall be applied toward time in 26 prerelease custody or supervised release). Petitioner requests the Court to issue an injunction 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. 9). 1 compelling the BOP to calculate and apply his earned time credits. (Doc. No. 1 at 7). Petitioner 2 admits he did not exhaust his administrative remedies but argues exhaustion is futile because he is 3 challenging a policy. (Id. at 7). 4 In response, Respondent filed a Motion to Dismiss with Appendix on April 27, 2023. 5 (Doc. No. 12, 12-1). Respondent argues the Court lacks jurisdiction to consider the Petition 6 because Petitioner has received the requested relief, the Petition fails to state a claim, and 7 Petitioner did not exhaust his administrative remedies. (Doc. No. 12 at 2-5). Petitioner did not 8 file a response to the motion, nor request an extension of time to respond, and the time for doing 9 so has expired. (See Doc. No. 6 at ¶ 4, advising Petitioner that he has twenty-one (21) days to file 10 a response if Respondent files a motion to dismiss). For the reasons set forth more fully herein, 11 the Court grants Respondent’s Motion to Dismiss. 12 I. BACKGROUND 13 A. Procedural History 14 In 2009, Petitioner pled guilty in the Northern District of Georgia for conspiracy to 15 possess marijuana with intent to distribute in violation of 21 U.S.C. § 846 and conspiracy to 16 commit money laundering in violation of 18 U.S.C. § 1956(h). In 2012, Petitioner’s sentence was 17 modified to an aggregate term of 227 months of federal incarceration. See United States v. 18 Gonzalez et al., 1:08-cr-00356-WSD-ECS-8, Crim. Doc. Nos. 494, 591, 597, 961 (N.D. Ga.).2 At 19 the time Petitioner commenced this action, he was incarcerated in FCI Mendota. After Petitioner 20 filed the operative Petition demanding calculation of his earned time credit under the First Step 21 Act, BOP completed an FSA review of Petitioner’s sentence and determined he has 365 of 22 applied FTCs toward early transfer to supervised release, resulting in an advancement of his 23 projected release date to December 11, 2023. (Doc. No. 12-1 at 3, 7-8). 24 B. The First Step Act 25 The First Step Act (“FSA”), enacted December 21, 2018, provided for considerable 26 changes to the federal criminal code, including several prison and sentencing reforms. First Step 27 2 The undersigned cites to the record in Petitioner’s underlying NDGA criminal cases as “Crim. Doc. No. 28 _.” 1 Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194 (2018). One such reform under the First Time 2 Act entailed the implementation of Federal Time Credits (“FTCs”). 18 U.S.C. § 3632(d)(4)(A). 3 Essentially, an inmate “who successfully completed evidence-based recidivism reduction 4 programming or productive activities” “shall earn 10 days of time credits for every 30 days of 5 successful participation.” Id. These FTCs earned by eligible inmates are “applied toward time in 6 prerelease custody or supervised release.” Id. 7 Additionally, the FSA authorized the BOP to use a risk and needs assessment system, 8 “PATTERN,” and designate a prisoner with a minimum, low, medium, or high-risk score. United 9 States v. DeCaro, No. 2022 WL 4395905, at *1 n.1 (E.D. Mo. Aug. 23, 2022). Inmates who 10 receive a minimum or low-risk score over two consecutive assessments earn an additional five 11 days of time credits for every 30 days of successful participation in evidence-based recidivism 12 reduction programming (EBRR programming) or productive activities (PAs). 18 U.S.C. § 13 3632(d)(4)(A)(ii); Orihuela v. Engleman, 2022 WL 18106676, at *1 (C.D. Ca. Nov. 3, 2022) (“A 14 prisoner’s PATTERN score may affect the rate at which he earns FTC for his participation in 15 EBRRs and Pas.”). 16 Inmates may begin earning FTCs once their term begins, but an inmate cannot earn FTCs 17 for programming or activities in which he or she participated in prior to the enactment of the FSA 18 on December 21, 2018. 28 C.F.R. § 523.42. An inmate can earn retroactive application of FTCs 19 for EBRR programming or PAs in which he or she participated in from December 21, 2018, to 20 January 13, 2022. Id. 21 II. APPLICABLE LAW AND ANALYSIS 22 Under Rule 4, if a petition is not dismissed at screening, the judge “must order the 23 respondent to file an answer, motion, or other response” to the petition. R. Governing 2254 Cases 24 4. The Advisory Committee Notes to Rule 4 state that “the judge may want to authorize the 25 respondent to make a motion to dismiss based upon information furnished by respondent.” A 26 motion to dismiss a petition for writ of habeas corpus is construed as a request for the court to 27 dismiss under Rule 4 of the Rules Governing Section 2254 Cases. O’Bremski v. Maass, 915 F.2d 28 418, 420 (9th Cir. 1990). Under Rule 4, a district court must dismiss a habeas petition if it 1 “plainly appears” that the petitioner is not entitled to relief. See Valdez v. Montgomery, 918 F.3d 2 687, 693 (9th Cir. 2019); Boyd v. Thompson, 147 F.3d 1124, 1127 (9th Cir. 1998). 3 A. Mootness 4 Under Article III, Section II of the Constitution, a federal court’s jurisdiction is limited to 5 adjudication of “live” cases and controversies. See Hollingsworth v. Perry, 570 U.S. 693, 705 6 (2013) (“Article III demands that an actual controversy persist throughout all stages of 7 litigation.”) (internal quotation marks omitted); see also Arizonans for Official English v. 8 Arizona, 520 U.S. 43, 67 (1997) (Article III's “cases” and “controversies” limitation requires that 9 “an actual controversy . . . be extant at all stages of review, not merely at the time the complaint is 10 filed,”) (internal quotation marks omitted). Federal courts consider various doctrines, including 11 “standing,” “ripeness,” and “mootness” to ascertain whether a meets the “case and controversy” 12 requirement. See Poe v. Ullman, 367 U.S. 497, 502-505 (1961). To maintain a claim, a litigant 13 must continue to have a personal stake in all stages of the judicial proceeding. Abdala v. INS, 488 14 F.3d 1061, 1063 (9th Cir. 2007) (internal citation omitted). A case must be dismissed if it 15 becomes moot at any stage. See City of Mesquite v. Aladdin’s Castle, 455 U.S. 283, 288 (1982). 16 In the context of a habeas petition, the “case or controversy requirement requires a finding of 17 mootness if (1) the petitioner has received the relief requested in the petition; or (2) the court is 18 unable to provide the petition with the relief sought.” Aniyeloye v. Birkholz, 2023 WL 4868545, 19 at *1 (C.D. Cal. July 31, 2023) (citing Munoz v. Rowland, 104 F.3d 1096, 1097-98 (9th Cir. 20 1997)); see also Dominguez v. Kernan, 906 F.3d 1127, 1132 (9th Cir. 2018) (case is moot when it 21 is “impossible for a court to grant any effectual relief” on petitioner’s claim). 22 Here, Petitioner alleges the BOP policy unlawfully excludes him from earning and 23 applying FTCs under the FSA because he had an immigration detainer. (Doc. No. 1 at 6). On 24 November 18, 2022, the BOP issued Program Statement 5410.01 modifying its procedures to 25 allow inmates with detainers to earn FTCs, if otherwise eligible, but precluding them from 26 applying the FTCs until the detainers were resolved. U.S. Dep't of Justice, Federal Bureau of 27 Prisons, Program Statement No. 5410.01, First Step Act of 2018 - Time Credits: Procedures for 28 Implementation of 18 U.S.C. 3632(d)(4), at 17 (Nov. 18, 2022), 1 https://www.bop.gov/policy/progstat/5410_01_cn2.pdf (last visited October 23, 2023). More 2 recently, on February 6, 2023, the BOP issued a change notice to the Program Statement deleting 3 the requirement that inmates have no detainers in order to apply FTCs. U.S. Dep't of Justice, 4 Federal Bureau of Prisons, Change Notice to Program Statement No. 5410.01, First Step Act of 5 2018 - Time Credits: Procedures for Implementation of 18 U.S.C. 3632(d)(4) (Feb. 6, 2023), 6 https://www.bop.gov/policy/progstat/5410.01_cn2.pdf (last visited October 23, 2023); see also 7 Alatorre v. Derr, 2023 WL 2599546, at *5 (D. Haw. Mar. 22, 2023) (“As a result of Change 8 Notice 5410.01, federal prisoners subject to immigration detainers are no longer automatically 9 prohibited from applying their earned time credits.”). 10 Therefore, pursuant to current BOP policy, Petitioner is no longer precluded from earning 11 and applying FTCs solely due to an immigration detainer. Rather, as noted by Respondent, 12 “Petitioner is currently eligible to apply FSA FTCs, has 365 days of applied FTCs toward early 13 transfer to supervised release, and has a projected release date of December 11, 2023.” (Doc. No. 14 12-1 at 3). Because Petitioner has received the relief requested, and the challenged policy is no 15 longer in place, the operative Petition is moot. Thus, the Court lacks jurisdiction to consider any 16 claims raised in the Petition. 17 B. Failure to Exhaust Administrative Remedies 18 “Federal prisoners [generally] are required to exhaust their federal administrative 19 remedies prior to bringing a petition for a writ of habeas corpus in federal court.” Martinez v. 20 Roberts, 804 F.2d 570, 571 (9th Cir. 1986); see also Ward v. Chavez, 678 F.3d 1042 (9th Cir. 21 2012). However, the requirement that federal prisoners exhaust administrative remedies before 22 filing a habeas corpus petition was judicially created; it is not a statutory requirement. Brown v. 23 Rison, 895 F.2d 533, 535 (9th Cir. 1990), overruled on other grounds by Reno v. Koray, 515 U.S. 24 50, 54-55 (1995). Because exhaustion is not required by statute, it is not jurisdictional. Id. (citing 25 Morrison-Knudsen Co., Inc. v. CHG Int’l, Inc., 811 F.2d 1209, 1223 (9th Cir. 1987)). If 26 petitioner has not properly exhausted his claims, the district court, in its discretion, may 27 “determine whether to excuse the faulty exhaustion and reach the merits or require the petitioner 28 to exhaust his administrative remedies before proceeding in court.” Id. 1 Requiring a petitioner to exhaust administrative remedies (1) aids judicial review “by 2 allowing the appropriate development of a factual record in an expert forum,” (2) conserves “the 3 court's time because of the possibility that the relief applied for may be granted at the 4 administrative level,” and (3) allows “the administrative agency an opportunity to correct errors 5 occurring in the course of administrative proceedings.” Ruviwat v. Smith, 701 F.2d 844, 845 (9th 6 Cir. 1983) (per curiam). Dismissal is appropriate when a federal prisoner has not exhausted the 7 administrative remedies made available by the BOP. See Quinonez v. McGrew, 649 F. App'x 475 8 (9th Cir. 2016) (affirming district court's dismissal of a § 2241 petition where the petitioner “did 9 not complete any level of the BOP's Administrative Remedy Program and there is no indication 10 that his pursuit of those remedies would be futile”). However, the Court may waive the 11 exhaustion requirement when administrative remedies are inadequate, irreparable injury may 12 occur without immediate judicial relief, or exhaustion otherwise would be futile. Laing v. 13 Ashcroft, 370 F.3d 994, 1000-01 (9th Cir. 2004) (“[D]istrict court’s habeas jurisdiction under 28 14 U.S.C. § 2241 is ordinarily reserved for instances in which no other judicial remedy is 15 available.”). 16 When seeking administrative remedies, an inmate must first attempt informal resolution 17 (BP-8). 28 C.F.R. § 542.13. Thereafter, the BOP makes available a formal three-level 18 Administrative Remedy Program: (1) a Request for Administrative Remedy (BP-9) filed at the 19 institution where the inmate is incarcerated; (2) a Regional Administrative Remedy Appeal (BP- 20 10) filed at the Regional Office for the geographic region in which the inmate's institution is 21 located; and (3) a Central Office Administrative Remedy Appeal (BP-11) filed with the Office of 22 General Counsel. 28 C.F.R. § 542.10 et seq. 23 Here, Respondent indicates Petitioner has not presented his grounds for relief at any level 24 of the BOP administrative remedy process. (Doc. No. 12-1 at 4). Petitioner appears to concede 25 that he did not present either of his two grounds for relief at any level, and contends any appeal 26 would be futile because he is challenging a BOP policy. (Doc. No. 1 at 7, 16-18). However, as 27 discussed supra, subsequent to the filing of his Petition, BOP policy removed any restriction on 28 earning and applying FTCs under the FSA based on an immigration detainer. Thus, exhaustion 1 | would not be futile in this case, and the exhaustion requirement should not be excused. In the 2 | alternative, the Petition is subject to dismissal because Petitioner failed to exhaust administrative 3 | remedies. 4 Accordingly, it is ORDERED: 5 1. Respondent’s Motion to Dismiss (Doc. No. 12) is GRANTED. 6 2. The Petition for Writ of Habeas Corpus (Doc. No. 1) is DISMISSED. 7 3. The Clerk of Court is directed to terminate any pending motions and close this case. 8 ” | Dated: _ October 25, 2023 Mihaw. Th. foareh Hack 10 HELENA M. BARCH-KUCHTA 1 UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28