(HC) Velasquez-Rincon v. Warden ( 2024 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 ----oo0oo---- 11 12 JESUS MANUEL VELASQUEZ-RINCON, No. 2:23-cv-0837 WBS CKD 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 8, 2024, the Magistrate Judge filed findings 25 and recommendations recommending that the case be dismissed under 26 Local Rules 182(f) and 110 based on petitioner’s failure to keep 27 the court apprised of his current address. (Docket No. 13.) The 28 findings and recommendations were mailed to all parties and which 1 contained notice to all parties that any objections to the 2 findings and recommendations were to be filed within fourteen 3 days.1 Neither party has filed objections to the findings and 4 recommendations. 5 The court agrees that the case should be dismissed, 6 though for different reasons than the recommendation of the 7 Magistrate Judge. Based on the record, it appears that 8 petitioner has not exhausted his administrative remedies. (See 9 Hubbard Decl. ¶ 6; App. 11 (Docket No. 12-1).) Accordingly, the 10 court will grant respondent’s motion to dismiss the petition for 11 failure to exhaust. See, e.g., Casellas v. Warden, FCI-Mendota, 12 No. 1.23-cv-49 SKO, 2023 WL 4535030, *3 (July 13, 2023) 13 (dismissing petition claiming BOP did not apply earned time 14 credits based on failure to exhaust). 15 Moreover, based on the record, petitioner is subject to 16 a final order of deportation. (See Hubbard Decl. ¶¶ 18-19; App. 17 12 (Docket No. 12-1).) Inmates with a final order of deportation 18 are ineligible for application of earned time credits. See, 19 e.g., Garcia v. Thompson, Civil Action No. 3:23-0495, 2023 WL 20 3483236, *1-2 (M.D. Pa. May 16, 2023). Accordingly, the court 21 will also dismiss the petition on this alternative ground. 22 Accordingly, IT IS HEREBY ORDERED that: 23 1. The court declines to adopt the findings and 24 recommendations filed January 8, 2024; 25 1 The court notes, however, that the Findings and Recommendations mailed to petitioner were returned as 26 “undeliverable, No longer here,” and that the Magistrate Judge’s 27 two prior orders mailed to petitioner’s address of record were also returned as undeliverable. 28 eR IEE II I IES IIE III ERIE IIE OR 1 2. Respondent’s November 30, 2023 motion to dismiss (Docket 2] No. 12) is GRANTED; and 3 3. This action is dismissed. 4 Dated: February 14, 2024 ed tlean +k thé. ° WILLIAMB.SHUBB its 6 UNITED STATES DISTRICT JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28