(HC) Ojo v. Warden ( 2024 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 ----oo0oo---- 11 12 OLANREWAJU TUNDE OJO, No. 2:23-cv-1096-WBS KJN 13 Petitioner, 14 v. ORDER 15 WARDEN, F.C.I. HERLONG, 16 Respondent. 17 18 ----oo0oo---- 19 Petitioner, proceeding pro se, has filed an application 20 for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. 21 (Docket No. 1.) The matter was referred to a United States 22 Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local 23 Rule 302. 24 On January 3, 2024, the Magistrate Judge filed findings 25 and recommendations recommending that the case be dismissed under 26 Local Rule 110 and Federal Rule of Civil Procedure 41(b) based on 27 petitioner’s failure to respond to the Magistrate Judge’s order 28 to show cause after petitioner did not respond to respondent’s 1 motion to dismiss. (Docket Nos. 8, 9.) The findings and 2 recommendations were served on all parties and contained notice 3 to all parties that any objections to the findings and 4 recommendations were to be filed within fourteen days. Neither 5 party has filed objections to the findings and recommendations. 6 The court agrees that the case should be dismissed, 7 though for different reasons than the recommendation of the 8 Magistrate Judge. Based on the record, it appears that 9 petitioner has not exhausted his administrative remedies. (See 10 Vickers Decl. ¶¶ 7-8 (Docket No. 7-1).) Accordingly, the court 11 will grant respondent’s motion to dismiss the petition for 12 failure to exhaust. See, e.g., Casellas v. Warden, FCI-Mendota, 13 No. 1.23-cv-49 SKO, 2023 WL 4535030, *3 (July 13, 2023) 14 (dismissing petition claiming BOP did not apply earned time 15 credits based on failure to exhaust). 16 Moreover, based on the record, petitioner appears to be 17 subject to a final order of deportation. (See Vickers Decl. ¶ 6; 18 DHS Immigration Detainer at App. 30 (Docket No. 7-1).) Inmates 19 with a final order of deportation are ineligible for application 20 of earned time credits. See, e.g., Garcia v. Thompson, Civil 21 Action No. 3:23-0495, 2023 WL 3483236, *1-2 (M.D. Pa. May 16, 22 2023). Accordingly, it appears that the petition is also subject 23 to dismissal on this ground.1 24 Accordingly, IT IS HEREBY ORDERED that: 25 26 1 Even assuming that petitioner had exhausted his 27 administrative remedies and was not subject to deportation, the Bureau of Prison’s inmate locator indicates that he was released 28 eee OI ERIE EOI OE I OSE OD 1 1. The court declines to adopt the findings and 2 recommendations filed January 3, 2024; 3 2. Respondent’s October 18, 2023 motion to dismiss (Docket 4 No. 7) is GRANTED; and 5 3. This action is dismissed. 6 Dated: February 14, 2024 dbl A (hh.tE— 7 WILLIAMB.SHUBB + = —— 8 UNITED STATES DISTRICT JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28