(HC) Diaz v. Thompson ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 EDUARDO DIAZ, No. 2:21-cv-01755-WBS-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 November 30, 2021, the court directed respondents to 19 file a response within 60 days. ECF No. 7. Respondents filed a motion to dismiss the § 2241 20 petition on February 1, 2022. ECF No. 11. Petitioner filed a reply which the court construes as 21 an opposition to the motion. ECF No. 12. For the reasons explained below, the undersigned 22 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 Western District of Missouri, which this court takes 25 judicial notice of, indicates that petitioner entered a guilty plea to conspiracy to distribute 26 methamphetamine.2 See ECF No. 11-1 (docket sheet for Case No. 6:16-cr-03039-MDH). On 27 1 Petitioner paid the $5.00 filing fee for this action. 28 2 “[C]ourts routinely take judicial notice of documents filed in other courts... to establish the fact 1 April 5, 2018, petitioner was sentenced to 144 months of incarceration followed by 5 years of 2 supervised release. See ECF No. 11-1 at 62-63. 3 Petitioner, who is presently confined at FCI-Herlong, filed a habeas corpus petition 4 pursuant to 28 U.S.C. § 2241 on September 25, 2021.3 ECF No. 1. In his habeas application, 5 petitioner seeks a declaratory judgment that he is entitled to earned time credits (“ETCs”) 6 pursuant to the First Step Act of 2018 (“FSA”). ECF No. 1 at 1. Although petitioner purported to 7 file an amended habeas petition on October 18, 2021, this pleading only consists of a single page 8 and indicates that petitioner’s expected release date including the earned time credits is August 9 15, 2023. ECF No. 3. The court construes this amended petition as a supplement to the original 10 habeas application. 11 Respondents move to dismiss the petition based on lack of Article III standing and 12 ripeness, lack of jurisdiction, petitioner’s failure to exhaust his administrative remedies, and 13 because there is no statutory authority to compel the Bureau of Prisons to perform a discretionary 14 act. ECF No. 11. First and foremost, respondents submit that there is no “case or controversy” 15 for the court to adjudicate because “neither [p]etitioner’s custodial status nor custody term has 16 been impacted by any BOP action.” ECF No. 11 at 3. Accordingly, petitioner’s § 2241 17 application is nothing more than an abstract disagreement which petitioner does not have standing 18 to challenge. 19 In support of their motion to dismiss, respondents submitted a declaration from Charles 20 Hubbard, a Correctional Programs Administrator with the Bureau of Prisons, who reviewed 21 petitioner’s inmate records. ECF No. 11-2. Mr. Hubbard describes the three-level administrative 22 review process available to federal inmates challenging BOP actions and indicates that petitioner 23 has not exhausted his administrative remedies related to earned time credits under the First Step 24 Act. ECF No. 11-2 at 3. Mr. Hubbard describes the specific provisions of the First Step Act 25 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 related to earned time credits for participation in Evidence Based Recidivism Reduction Programs 2 (“EBRRs”) and Productive Activities (“PAs”). ECF No. 11-2 at 3-8. Based on his minimum risk 3 score, petitioner has been determined eligible for earned time credits under the FSA. ECF No. 4 11-2 at 8. However, since his projected release date is more than 45 days away, the BOP has not 5 yet calculated the exact ETCs to be awarded to him. Id. at 7-8 (explaining that “time credit 6 processing [for BOP inmates] will be in order based on their expected date of transfer to 7 community placement.”). 8 II. Legal Standards 9 A. Section 2241 Relief 10 Federal inmates have two avenues for pursuing habeas corpus relief. First, a challenge to 11 a federal prisoner’s conviction or sentence can be raised via a motion to vacate, set aside, or 12 correct the sentence pursuant to 28 U.S.C. § 2255. Section 2255 motions are filed in the judicial 13 district where the conviction occurred. Alternatively, a federal inmate challenging the manner, 14 location, or conditions involved in the execution of their sentence, may file a habeas corpus 15 petition pursuant to 28 U.S.C. § 2241. Hernandez v. Campbell, 204 F.3d 861, 864 (9th Cir. 16 2000). Jurisdiction over a § 2241 petition lies in the district of the prisoner’s confinement. 17 B. First Step Act 18 The First Step Act of 2018 (“FSA”) made several important changes to the duration of 19 federal prison sentences. See Pub. L. No. 115-391, 132 Stat. 5194. As relevant to the pending 20 habeas petition, it created an evidence-based recidivism reduction program that incentivizes 21 inmates to participate in and complete programs and productive activities by awarding them, inter 22 alia, “10 days of time credits…” and “an additional 5 days of time credits for every 30 days of 23 successful participation” if the prisoner is classified as a minimum or low risk of recidivism. 18 24 U.S.C. § 3632(d)(4). In order to apply these earned time credits, the BOP was first required to 25 develop a risk and needs assessment system within 210 days after enactment of the FSA. 18 26 U.S.C. § 3632(a). By January 15, 2020, the BOP was required to conduct an initial intake risk 27 and needs assessment for each prisoner and “begin to assign prisoners to appropriate evidence- 28 based recidivism reduction programs based on that determination.” 18 U.S.C. 3621(h). The FSA 1 also created a phase-in period of up to 2 years following the initial risk and needs assessment for 2 the BOP to “provide such evidence-based recidivism reduction programs and productive activities 3 for all prisoners.” 18 U.S.C. § 3621(h)(2). “During the 2-year period…, the priority for such 4 programs and activities shall be accorded based on a prisoner’s proximity to release date.” 18 5 U.S.C. § 3621(h)(3). Thus, by January 15, 2022, the BOP was required to provide the necessary 6 recidivism reduction programs and productive activities for all prisoners to earn additional time 7 credits to reduce their sentences under the FSA if they meet the other relevant criteria. 8 The BOP implemented its final agency rules regarding the earning and awarding of ETC’s under 9 the First Step Act on January 19, 2022. See 87 Fed. Reg. 2,705-01, 2022 WL 159155 (F.R.) 10 (codified at 28 C.F.R. §§ 523.40-523.44) (explaining that “[t]he final rule adopts a more 11 straightforward and more administratively manageable approach that is consistent with the FSA’s 12 goal…” by awarding ten days of FSA time credits “[f]or every thirty-day period that an eligible 13 inmate successfully participates in EBRR Programs or PAs….”). 14 III. Analysis 15 Against this federal statutory backdrop, the court turns to the specific issues raised in 16 respondents’ motion to dismiss. According to Article III of the United States Constitution, 17 federal courts have jurisdiction over “cases” and “controversies.” As a threshold jurisdictional 18 matter, parties are required to have an actual controversy that “make[s] resolution of the 19 controverted issue a practical necessity.” See Poe v. Ullman, 367 U.S. 497, 502-05 (1961). This 20 requirement of ripeness serves “to prevent the courts, through avoidance of premature 21 adjudication, from entangling themselves in abstract disagreements over administrative policies, 22 and also to protect the agencies from judicial interference until an administrative decision has 23 been formalized and its effects felt in a concrete way by the challenging parties.” Abbott 24 Laboratories v. Gardner, 387 U.S. 136, 148-49 (1967), abrogated on other grounds by Califano v. 25 Sanders, 430 U.S. 99 (1977). A claim is not yet ripe for judicial review “if it involves contingent 26 future events that may not occur as anticipated, or indeed may not occur at all.” United States v. 27 Streich, 560 F.3d 926, 931 (9th Cir. 2009) (quoting Thomas v. Union Carbide Agr. Prods. Co., 28 473 U.S. 568, 580-81 (1985)). 1 In this case, the BOP has not yet calculated petitioner’s ETCs because his May 21, 2026 2 release date is too far in the future and the agency has chosen to calculate FSA sentencing credits 3 on a rolling basis, with those with an anticipated release date within 45 days given first priority. 4 See ECF No. 11-2 at 3, 7-8 (Declaration of Charles Hubbard); see also 87 Fed. Reg. 2,705-01, 5 2022 WL 159155 (F.R.) (explaining that a “phased-in approach is appropriate and warranted, 6 given that the FSA has been the most impactful congressional action taken concerning the Bureau 7 of Prisons in recent years, requiring major changes to existing systems and processes, the 8 development of new systems, and changes that apply to approximately 130,000 current 9 inmates.”). The FSA mandated giving prisoners with impending release dates priority in 10 participating in the programs and activities to earn these time credits, and, at this juncture, the 11 court has no way of knowing exactly how the BOP will actually calculate petitioner’s earned time 12 credits. Petitioner is essentially seeking an advisory opinion from this court, although he phrases 13 it in the form of a request for a “declaratory judgment.” ECF No. 1 at 1; see e.g., Flast v. Cohen, 14 392 U.S. 83, 96 (1968) (emphasizing that “it is quite clear that ‘the oldest and most consistent 15 thread in the federal law of justiciability is that the federal courts will not give advisory 16 opinions.’”) (internal citation omitted). The issue before the court is merely an abstract 17 disagreement between the parties. As a result, this case is not ripe for adjudication because it 18 hinges “upon contingent future events that may not occur as anticipated….” Streich, 560 F.3d at 19 931. The undersigned therefore recommends granting respondents’ motion to dismiss the 20 pending § 2241 petition based on lack of ripeness. In light of this recommendation and in the 21 interests of judicial economy, the undersigned finds it unnecessary to address the remaining 22 grounds raised in respondents’ motion to dismiss. 23 IV. Plain Language Summary for Pro Se Party 24 The following information is meant to explain this order in plain English and is not 25 intended as legal advice. 26 After reviewing the provisions of the First Step Act, the undersigned has concluded that 27 there is no specific case or controversy that you are challenging. This court cannot simply issue a 28 declaratory judgment, as you request, without any pending dispute between the parties. The 1 | undersigned recommends granting respondent’s motion to dismiss your § 2241 petition. 2 If you disagree with this recommendation, you have 14 days to explain why it is not the 3 || correct result. Label your explanation “Objections to Magistrate Judge’s Findings and 4 || Recommendations.” The district court judge assigned to your case will review the matter and 5 || issue a final decision. 6 Accordingly, IT IS HEREBY RECOMMENDED that: 7 1. Respondents’ motion to dismiss (ECF No. 11) be granted. 8 2. Petitioner’s application for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 be 9 dismissed without prejudice based on lack of ripeness. 10 These findings and recommendations are submitted to the United States District Judge 11 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days 12 | after being served with these findings and recommendations, any party may file written 13 || objections with the court and serve a copy on all parties. Such a document should be captioned 14 | “Objections to Magistrate Judge’s Findings and Recommendations.” The parties are advised that 15 | failure to file objections within the specified time may waive the right to appeal the District 16 || Court’s order. Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 17 | Dated: May 31, 2022 / ae □□ / a Ly a 18 CAROLYN K DELANEY 19 UNITED STATES MAGISTRATE JUDGE 20 21 22 23 || 12/diaz1755.2241.F&R.docx 24 25 26 27 28