(HC) Garcia 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 GARCIA, IV, No. 2:21-cv-01852-KJM-CKD P 12 Petitioner, 13 v. FINDINGS AND RECOMMENDATIONS 14 PAUL THOMPSON, et al., 15 Respondents. 16 17 Petitioner, a federal prisoner proceeding pro se, has filed a petition for a writ of habeas 18 corpus pursuant to 28 U.S.C. § 2241.1 On December 6, 2021, the court ordered respondent to file 19 an answer to the petition or a motion to dismiss within 60 days. ECF No. 5. Respondent filed a 20 motion to dismiss the § 2241 petition on February 4, 2022. ECF No. 7. Petitioner has not filed 21 an opposition and the time to do so has expired. For the reasons explained below, the 22 undersigned recommends granting respondent’s motion to dismiss based on lack of ripeness. 23 I. Factual and Procedural History 24 A review of the docket from the District of Hawaii, which this court takes judicial notice 25 of, indicates that petitioner was convicted following a jury trial of possession with the intent to 26 distribute methamphetamine, possession with the intent to distribute cocaine, and conspiracy to 27 28 1 Petitioner paid the $5.00 filing fee for this action. 1 possess with the intent to distribute 500 grams or more of methamphetamine and cocaine.2 See 2 ECF No. 7-1 (docket sheet for Case No. 1:13-cr-00219-DKW). On October 5, 2016, petitioner 3 was sentenced to 196 months of incarceration on each count, with the sentences running 4 concurrently to one another. See ECF No. 7-1 at 43. 5 On direct appeal, petitioner’s conviction was affirmed by the Ninth Circuit Court of 6 Appeal on April 2, 2018. See ECF No. 7-1 at 46. Petitioner filed a motion to vacate, set aside or 7 correct his sentence pursuant to 28 U.S.C. § 2255 on October 29, 2018. ECF No. 7-1 at 46. This 8 motion was denied by the sentencing court on June 10, 2019. ECF No. 7-1 at 48. Petitioner’s 9 motion for compassionate release was also denied by the district court on March 23, 2021. ECF 10 No. 7-1 at 49. This decision was upheld on appeal. See ECF No. 7-1 at 50. 11 Petitioner, who is presently confined at FCI-Herlong, filed a habeas corpus petition 12 pursuant to 28 U.S.C. § 2241 on September 25, 2021.3 ECF No. 1. In his habeas application, 13 petitioner seeks a declaratory judgment that he is entitled to earned time credits (“ETCs”) 14 pursuant to the First Step Act of 2018 (“FSA”). ECF No. 1 at 1. Specifically, petitioner 15 calculates that he is entitled to earned time credits resulting in an early release date of June 20, 16 2022. ECF No. 1 at 1. Absent these earned time credits, petitioner’s expected release date is 17 January 26, 2027. ECF No. 1 at 7. 18 Respondents move to dismiss the petition based on lack of Article III standing and 19 ripeness, lack of jurisdiction, petitioner’s failure to exhaust his administrative remedies, and 20 because there is no statutory authority to compel the Bureau of Prisons to perform a discretionary 21 act. ECF No. 7. First and foremost, respondents submit that there is no “case or controversy” for 22 the court to adjudicate because “neither [p]etitioner’s custodial status nor custody term has been 23 impacted by any BOP action.” ECF No. 7 at 4. Accordingly, petitioner’s § 2241 application is 24 nothing more than an abstract disagreement which petitioner does not have standing to challenge. 25 2 “[C]ourts routinely take judicial notice of documents filed in other courts... to establish the fact of such litigation and related filings.” Kramer v. Time Warner Inc., 937 F.2d 767, 774 (2d Cir. 26 1991) (citation omitted). 27 3 The filing date has been calculated using the prison mailbox rule. See Houston v. Lack, 487 28 U.S. 266 (1988). 1 In support of their motion to dismiss, respondents submitted a declaration from Charles 2 Hubbard, a Correctional Programs Administrator with the Bureau of Prisons, who reviewed 3 petitioner’s inmate records. ECF No. 7-2. Mr. Hubbard describes the three-level administrative 4 review process available to federal inmates challenging BOP actions, and indicates that petitioner 5 has not exhausted his administrative remedies related to earned time credits under the First Step 6 Act. ECF No. 7-2 at 3. Mr. Hubbard describes the specific provisions of the First Step Act 7 related to earned time credits for participation in Evidence Based Recidivism Reduction Programs 8 (“EBRRs”) and Productive Activities (“PAs”). ECF No. 7-2 at 3-8. Based on his minimum risk 9 score, petitioner has been determined eligible for earned time credits under the FSA. ECF No. 7- 10 2 at 8. However, because his projected release date is more than 45 days away, the BOP has not 11 yet calculated the exact ETCs to be awarded to him. Id. (explaining that “time credit processing 12 [for BOP inmates] will be in order based on their expected date of transfer to community 13 placement.”). 14 II. Legal Standards 15 A. Section 2241 Relief 16 Federal inmates have two avenues for pursuing habeas corpus relief. First, a challenge to 17 a federal prisoner’s conviction or sentence can be raised via a motion to vacate, set aside, or 18 correct the sentence pursuant to 28 U.S.C. § 2255. Section 2255 motions are filed in the judicial 19 district where the conviction occurred. Alternatively, a federal inmate challenging the manner, 20 location, or conditions involved in the execution of their sentence, may file a habeas corpus 21 petition pursuant to 28 U.S.C. § 2241. Hernandez v. Campbell, 204 F.3d 861, 864 (9th Cir. 22 2000). Jurisdiction over a § 2241 petition lies in the district of the prisoner’s confinement. 23 B. First Step Act 24 The First Step Act of 2018 (“FSA”) made several important changes to the duration of 25 federal prison sentences. See Pub. L. No. 115-391, 132 Stat. 5194. As relevant to the pending 26 habeas petition, it created an evidence-based recidivism reduction program that incentivizes 27 inmates to participate in and complete programs and productive activities by awarding them, inter 28 alia, “10 days of time credits…” and “an additional 5 days of time credits for every 30 days of 1 successful participation” if the prisoner is classified as a minimum or low risk of recidivism. 18 2 U.S.C. § 3632(d)(4). In order to apply these earned time credits, the BOP was first required to 3 develop a risk and needs assessment system within 210 days after enactment of the FSA. 18 4 U.S.C. § 3632(a). By January 15, 2020, the BOP was required to conduct an initial intake risk 5 and needs assessment for each prisoner and “begin to assign prisoners to appropriate evidence- 6 based recidivism reduction programs based on that determination.” 18 U.S.C. 3621(h). The FSA 7 also created a phase-in period of up to 2 years following the initial risk and needs assessment for 8 the BOP to “provide such evidence-based recidivism reduction programs and productive activities 9 for all prisoners.” 18 U.S.C. § 3621(h)(2). “During the 2-year period…, the priority for such 10 programs and activities shall be accorded based on a prisoner’s proximity to release date.” 18 11 U.S.C. § 3621(h)(3). Thus, by January 15, 2022, the BOP was required to provide the necessary 12 recidivism reduction programs and productive activities for all prisoners to earn additional time 13 credits to reduce their sentences under the FSA if they meet the other relevant criteria. 14 The BOP implemented its final agency rules regarding the earning and awarding of ETC’s 15 under the First Step Act on January 19, 2022. See 87 Fed. Reg. 2,705-01, 2022 WL 159155 16 (F.R.) (codified at 28 C.F.R. §§ 523.40-523.44) (explaining that “[t]he final rule adopts a more 17 straightforward and more administratively manageable approach that is consistent with the FSA’s 18 goal…” by awarding ten days of FSA time credits “[f]or every thirty-day period that an eligible 19 inmate successfully participates in EBRR Programs or PAs….”). 20 III. Analysis 21 Against this federal statutory backdrop, the court turns to the specific issues raised in 22 respondents’ motion to dismiss. According to Article III of the United States Constitution, 23 federal courts have jurisdiction over “cases” and “controversies.” As a threshold jurisdictional 24 matter, parties are required to have an actual controversy that “make[s] resolution of the 25 controverted issue a practical necessity.” See Poe v. Ullman, 367 U.S. 497, 502-05 (1961). This 26 requirement of ripeness serves “to prevent the courts, through avoidance of premature 27 adjudication, from entangling themselves in abstract disagreements over administrative policies, 28 and also to protect the agencies from judicial interference until an administrative decision has 1 been formalized and its effects felt in a concrete way by the challenging parties.” Abbott 2 Laboratories v. Gardner, 387 U.S. 136, 148-49 (1967), abrogated on other grounds by Califano v. 3 Sanders, 430 U.S. 99 (1977). A claim is not yet ripe for judicial review “if it involves contingent 4 future events that may not occur as anticipated, or indeed may not occur at all.” United States v. 5 Streich, 560 F.3d 926, 931 (9th Cir. 2009) (quoting Thomas v. Union Carbide Agr. Prods. Co., 6 473 U.S. 568, 580-81 (1985)). 7 In this case, the BOP has not yet calculated petitioner’s ETCs because his release date is 8 too far in the future and the agency has chosen to calculate FSA sentencing credits on a rolling 9 basis with those with an anticipated release date within 45 days given first priority. See ECF No. 10 7-2 (Declaration of Charles Hubbard); see also 87 Fed. Reg. 2,705-01, 2022 WL 159155 (F.R.) 11 (explaining that a “phased-in approach is appropriate and warranted, given that the FSA has been 12 the most impactful congressional action taken concerning the Bureau of Prisons in recent years, 13 requiring major changes to existing systems and processes, the development of new systems, and 14 changes that apply to approximately 130,000 current inmates.”). The FSA mandated giving 15 prisoners with impending release dates priority in participating in the programs and activities to 16 earn these time credits, and, at this juncture, the court has no way of knowing exactly how the 17 BOP will actually calculate petitioner’s earned time credits. Petitioner is essentially seeking an 18 advisory opinion from this court, although he phrases it in the form of a request for a “declaratory 19 judgment.” ECF No. 1 at 1; see e.g., Flast v. Cohen, 392 U.S. 83, 96 (1968) (emphasizing that “it 20 is quite clear that ‘the oldest and most consistent thread in the federal law of justiciability is that 21 the federal courts will not give advisory opinions.’”) (internal citation omitted). The issue before 22 the court is merely an abstract disagreement between the parties. As a result, this case is not ripe 23 for adjudication because it hinges “upon contingent future events that may not occur as 24 anticipated….” Streich, 560 F.3d at 931. The undersigned therefore recommends granting 25 respondent’s motion to dismiss the pending § 2241 petition based on lack of ripeness. In light of 26 this recommendation and in the interests of judicial economy, the undersigned finds it 27 unnecessary to address the remaining grounds raised in respondents’ motion to dismiss. 28 ///// 1 IV. Plain Language Summary for Pro Se Party 2 The following information is meant to explain this order in plain English and is not 3 || intended as legal advice. 4 After reviewing the provisions of the First Step Act, the undersigned has concluded that 5 || there is no specific case or controversy that you are challenging. This court cannot simply issue a 6 || declaratory judgment, as you request, without any pending dispute between the parties. The 7 || undersigned recommends granting respondent’s motion to dismiss your § 2241 petition. 8 If you disagree with this recommendation, you have 14 days to explain why it is not the 9 || correct result. Label your explanation “Objections to Magistrate Judge’s Findings and 10 || Recommendations.” The district court judge assigned to your case will review the matter and 11 || issue a final decision. 12 Accordingly, IT IS HEREBY RECOMMENDED that: 13 1. Respondent’s motion to dismiss (ECF No. 7) be granted. 14 2. Petitioner’s application for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 be 15 dismissed without prejudice based on lack of ripeness. 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.” The parties are advised that 21 || failure to file objections within the specified time may waive the right to appeal the District 22 || Court’s order. Martinez v. YIst, 951 F.2d 1153 (th Cir. 1991). 23 | Dated: April 21, 2022 □□ / dp ai CAROLYNK. DELANEY 25 UNITED STATES MAGISTRATE JUDGE 26 27 12/garc1852.2241. F&R.docx 28