(HC) Rodriguez-Rodriguez v. Warden ( 2024 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 SLYTHER J. RODRIGUEZ- No. 1:24-cv-00666-SKO (HC) RODRIGUEZ, 12 ORDER DIRECTING CLERK OF COURT Petitioner, TO ASSIGN DISTRICT JUDGE 13 v. FINDINGS AND RECOMMENDATION 14 TO DISMISS PETITION FOR WRIT OF HABEAS CORPUS 15 WARDEN, F.C.I. MENDOTA, [TWENTY-ONE DAY DEADLINE] 16 Respondent. 17 18 Petitioner is a federal prisoner proceeding pro se and in forma pauperis with a petition for 19 writ of habeas corpus pursuant to 28 U.S.C. § 2241. 20 On June 7, 2024, Petitioner filed the instant petition in this Court. He is in the custody of 21 the Bureau of Prisons (“BOP”) at FCI-Mendota. He challenges the computation of his federal 22 sentence by the BOP. He claims the BOP wrongfully found him ineligible to receive earned time 23 credits under the First Step Act. The petition is unexhausted. Therefore, the Court will 24 recommend the petition be DISMISSED without prejudice. 25 DISCUSSION 26 I. Exhaustion 27 Before filing a petition for writ of habeas corpus, a federal prisoner challenging any 28 circumstance of imprisonment must first exhaust all administrative remedies. Martinez v. 1 Roberts, 804 F.2d 570, 571 (9th Cir. 1986); Chua Han Mow v. United States, 730 F.2d 1308, 2 1313 (9th Cir. 1984); Ruviwat v. Smith, 701 F.2d 844, 845 (9th Cir. 1983). The requirement that 3 federal prisoners exhaust administrative remedies before filing a habeas corpus petition was 4 judicially created; it is not a statutory requirement. Brown v. Rison, 895 F.2d 533, 535 (9th Cir. 5 1990). Thus, “because exhaustion is not required by statute, it is not jurisdictional.” Id. If 6 Petitioner has not properly exhausted his claims, the district court, in its discretion, may either 7 “excuse the faulty exhaustion and reach the merits or require the petitioner to exhaust his 8 administrative remedies before proceeding in court.” 9 The first step in seeking administrative remedies is a request for informal resolution. 28 10 C.F.R. § 542.13. When informal resolution procedures fail to achieve sufficient results, the BOP 11 makes available to inmates a formal three-level administrative remedy process: (1) a Request for 12 Administrative Remedy (“BP-9”) filed at the institution where the inmate is incarcerated; (2) a 13 Regional Administrative Remedy Appeal (“BP-10”) filed at the Regional Office for the 14 geographic region in which the inmate’s institution is located; and (3) a Central Office 15 Administrative Remedy Appeal (“BP-11”) filed with the Office of General Counsel. 28 C.F.R. § 16 542.10 et seq. 17 Petitioner concedes that he has not administratively exhausted his claims, but he claims 18 exhaustion should be waived for futility because he is challenging an established BOP policy. 19 Petitioner states his initial release date was scheduled for July 25, 2024. He cites to BOP 20 calculations made on January 16, 2024, and February 16, 2021, where it was indicated that 21 Petitioner had no detainers lodged against him. (Doc. 1 at 18, 21.) He states that on May 8, 22 2024, an immigration detainer was lodged which caused his date of release to be changed to July 23 25, 2025. Petitioner claims that he should be entitled to First Step Act (“FSA”) time credits 24 despite the detainer. 25 Prior to November 18, 2022, the BOP did take the position that inmates with detainers 26 were ineligible for FSA credits. However, on November 18, 2022, the BOP issued Program 27 Statement 5410.01 modifying its procedures to allow inmates with detainers to earn FSA credits; 28 inmates still could not have those credits applied until the detainers were resolved. U.S. Dep't of 1 Justice, Federal Bureau of Prisons, Program Statement No. 5410.01, First Step Act of 2018 - 2 Time Credits: Procedures for Implementation of 18 U.S.C. 3632(d)(4), at 17 (Nov. 18, 2022), 3 https://www.bop.gov/policy/progstat/5410_01.pdf (last visited June 23, 2023). On February 6, 4 2023, the BOP issued a change notice to the program statement in which the BOP deleted the 5 requirement that inmates have no detainers in order to have FSA credits applied to their sentence. 6 U.S. Dep't of Justice, Federal Bureau of Prisons, Change Notice to Program Statement No. 7 5410.01, First Step Act of 2018 - Time Credits: Procedures for Implementation of 18 U.S.C. 8 3632(d)(4) (Feb. 6, 2023), https://www.bop.gov/policy/progstat/5410.01_cn.pdf (last visited June 9 23, 2023). Thus, Petitioner is no longer barred pursuant to BOP policy from earning FSA credits 10 and having them applied to his sentence solely due to a detainer. 11 Petitioner claims he does not have a Final Order of Removal; however, the detainer 12 attached to his petition indicates a Final Order of Removal was in fact charged against him. (Doc. 13 1 at 20.) Petitioner claims exhaustion should be waived for futility because he is challenging an 14 established BOP policy. This is pure speculation. As noted above, the BOP no longer disallows 15 inmates with detainers from earning and applying FSA credits. The BOP disallows inmates with 16 Final Orders of Removal from applying FSA credits, but this is in accordance with the governing 17 statute. See 18 U.S.C. § 3632(d)(4)(E)(i) (A prisoner is ineligible to apply time credits under 18 subparagraph (C) if the prisoner is the subject of a final order of removal). 19 To the extent there is a question whether Petitioner is subject to a Final Order of 20 Removal, the issue should have been raised first to the BOP. Although the exhaustion 21 requirement is subject to waiver in § 2241 cases “it is not lightly to be disregarded.” Murillo v. 22 Mathews, 588 F.2d 759, 762, n.8 (9th Cir. 1978) (citation omitted). A “key consideration” in 23 exercising such discretion is whether “relaxation of the requirement would encourage the 24 deliberate bypass of the administrative scheme[.]” Laing v. Ashcroft, 370 F.3d 994, 1000 (9th 25 Cir. 2004) (internal quotation marks omitted). In this case, it is clear that Petitioner has 26 deliberately bypassed the administrative review process. Such action should not be encouraged. 27 The Court finds the petition should be dismissed for lack of exhaustion. 28 1 ORDER 2 IT IS HEREBY ORDERED that the Clerk of Court is DIRECTED to assign a district 3 judge to this case. 4 RECOMMENDATION 5 Accordingly, the Court RECOMMENDS that the petition for writ of habeas corpus be 6 DISMISSED without prejudice for failure to exhaust administrative remedies. 7 This Findings and Recommendation is submitted to the United States District Court Judge 8 assigned to this case, pursuant to the provisions of 28 U.S.C. section 636 (b)(1)(B) and Rule 304 9 of the Local Rules of Practice for the United States District Court, Eastern District of California. 10 Within twenty-one (21) days after being served with a copy, Petitioner may file written objections 11 with the Court. Such a document should be captioned “Objections to Magistrate Judge’s Findings 12 and Recommendation.” The Court will then review the Magistrate Judge’s ruling pursuant to 28 13 U.S.C. § 636 (b)(1)(C). Petitioner is advised that failure to file objections within the specified 14 time may waive the right to appeal the Order of the District Court. Martinez v. Ylst, 951 F.2d 15 1153 (9th Cir. 1991). 16 IT IS SO ORDERED. 17 18 Dated: June 11, 2024 /s/ Sheila K. Oberto . UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28