(HC) Rodriguez v. Warden, F.C.I. Mendota

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8 UNITED STATES DISTRICT COURT

9 FOR THE EASTERN DISTRICT OF CALIFORNIA

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11 JUAN RODRIGUEZ, No. 1:23-cv-00147-HBK (HC)

12 Petitioner, ORDER GRANTING RESPONDENT’S

MOTION TO DISMISS1

13 v.

(Doc. No. 12)

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WARDEN, FCI MENDOTA,

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Respondent.

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17 Petitioner Juan Rodriguez (“Petitioner”), a federal inmate, is proceeding pro se on his

18 petition for writ of habeas corpus under 28 U.S.C. § 2241, filed while he was incarcerated at

19 Federal Correctional Institution (“FCI”) Mendota, located in Fresno County, California, which is

20 within the venue and jurisdiction of this Court. (Doc. No. 1, “Petition”). The Petition challenges

21 the execution of Petitioner’s sentence. (Id. at 6). Specifically, the Petition raises one claim: the

22 Bureau of Prisons (“BOP”) unlawfully excluded Petitioner from applying earned time credits

23 (FTCs) due to his immigration detainer, which contravenes the First Step Act. (Id.); see 18

24 U.S.C. § 3632(d)(4)(A), (C) (providing that time credits earned from completion of evidence-

25 based recidivism reduction programming productive activities shall be applied toward time in

26 prerelease custody or supervised release). Petitioner requests the Court to issue an injunction

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1 Both parties have consented to the jurisdiction of a magistrate judge, in accordance with 28 U.S.C. §

28 636(c)(1). (Doc. No. 9).

1 compelling the BOP to calculate and apply his earned time credits. (Doc. No. 1 at 7). Petitioner

2 admits he did not exhaust his administrative remedies but argues exhaustion is futile because he is

3 challenging a policy. (Id. at 7).

4 In response, Respondent filed a Motion to Dismiss with Appendix on April 27, 2023.

5 (Doc. No. 12, 12-1). Respondent argues the Court lacks jurisdiction to consider the Petition

6 because Petitioner has received the requested relief, the Petition fails to state a claim, and

7 Petitioner did not exhaust his administrative remedies. (Doc. No. 12 at 2-5). Petitioner did not

8 file a response to the motion, nor request an extension of time to respond, and the time for doing

9 so has expired. (See Doc. No. 6 at ¶ 4, advising Petitioner that he has twenty-one (21) days to file

10 a response if Respondent files a motion to dismiss). For the reasons set forth more fully herein,

11 the Court grants Respondent’s Motion to Dismiss.

12 I. BACKGROUND

13 A. Procedural History

14 In 2009, Petitioner pled guilty in the Northern District of Georgia for conspiracy to

15 possess marijuana with intent to distribute in violation of 21 U.S.C. § 846 and conspiracy to

16 commit money laundering in violation of 18 U.S.C. § 1956(h). In 2012, Petitioner’s sentence was

17 modified to an aggregate term of 227 months of federal incarceration. See United States v.

18 Gonzalez et al., 1:08-cr-00356-WSD-ECS-8, Crim. Doc. Nos. 494, 591, 597, 961 (N.D. Ga.).2 At

19 the time Petitioner commenced this action, he was incarcerated in FCI Mendota. After Petitioner

20 filed the operative Petition demanding calculation of his earned time credit under the First Step

21 Act, BOP completed an FSA review of Petitioner’s sentence and determined he has 365 of

22 applied FTCs toward early transfer to supervised release, resulting in an advancement of his

23 projected release date to December 11, 2023. (Doc. No. 12-1 at 3, 7-8).

24 B. The First Step Act

25 The First Step Act (“FSA”), enacted December 21, 2018, provided for considerable

26 changes to the federal criminal code, including several prison and sentencing reforms. First Step

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2 The undersigned cites to the record in Petitioner’s underlying NDGA criminal cases as “Crim. Doc. No.

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1 Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194 (2018). One such reform under the First Time

2 Act entailed the implementation of Federal Time Credits (“FTCs”). 18 U.S.C. § 3632(d)(4)(A).

3 Essentially, an inmate “who successfully completed evidence-based recidivism reduction

4 programming or productive activities” “shall earn 10 days of time credits for every 30 days of

5 successful participation.” Id. These FTCs earned by eligible inmates are “applied toward time in

6 prerelease custody or supervised release.” Id.

7 Additionally, the FSA authorized the BOP to use a risk and needs assessment system,

8 “PATTERN,” and designate a prisoner with a minimum, low, medium, or high-risk score. United

9 States v. DeCaro, No. 2022 WL 4395905, at *1 n.1 (E.D. Mo. Aug. 23, 2022). Inmates who

10 receive a minimum or low-risk score over two consecutive assessments earn an additional five

11 days of time credits for every 30 days of successful participation in evidence-based recidivism

12 reduction programming (EBRR programming) or productive activities (PAs). 18 U.S.C. §

13 3632(d)(4)(A)(ii); Orihuela v. Engleman, 2022 WL 18106676, at *1 (C.D. Ca. Nov. 3, 2022) (“A

14 prisoner’s PATTERN score may affect the rate at which he earns FTC for his participation in

15 EBRRs and Pas.”).

16 Inmates may begin earning FTCs once their term begins, but an inmate cannot earn FTCs

17 for programming or activities in which he or she participated in prior to the enactment of the FSA

18 on December 21, 2018. 28 C.F.R. § 523.42. An inmate can earn retroactive application of FTCs

19 for EBRR programming or PAs in which he or she participated in from December 21, 2018, to

20 January 13, 2022. Id.

21 II. APPLICABLE LAW AND ANALYSIS

22 Under Rule 4, if a petition is not dismissed at screening, the judge “must order the

23 respondent to file an answer, motion, or other response” to the petition. R. Governing 2254 Cases

24 4. The Advisory Committee Notes to Rule 4 state that “the judge may want to authorize the

25 respondent to make a motion to dismiss based upon information furnished by respondent.” A

26 motion to dismiss a petition for writ of habeas corpus is construed as a request for the court to

27 dismiss under Rule 4 of the Rules Governing Section 2254 Cases. O’Bremski v. Maass, 915 F.2d

28 418, 420 (9th Cir. 1990). Under Rule 4, a district court must dismiss a habeas petition if it

1 “plainly appears” that the petitioner is not entitled to relief. See Valdez v. Montgomery, 918 F.3d

2 687, 693 (9th Cir. 2019); Boyd v. Thompson, 147 F.3d 1124, 1127 (9th Cir. 1998).

3 A. Mootness

4 Under Article III, Section II of the Constitution, a federal court’s jurisdiction is limited to

5 adjudication of “live” cases and controversies. See Hollingsworth v. Perry, 570 U.S. 693, 705

6 (2013) (“Article III demands that an actual controversy persist throughout all stages of

7 litigation.”) (internal quotation marks omitted); see also Arizonans for Official English v.

8 Arizona, 520 U.S. 43, 67 (1997) (Article III's “cases” and “controversies” limitation requires that

9 “an actual controversy . . . be extant at all stages of review, not merely at the time the complaint is

10 filed,”) (internal quotation marks omitted). Federal courts consider various doctrines, including

11 “standing,” “ripeness,” and “mootness” to ascertain whether a meets the “case and controversy”

12 requirement. See Poe v. Ullman, 367 U.S. 497, 502-505 (1961). To maintain a claim, a litigant

13 must continue to have a personal stake in all stages of the judicial proceeding. Abdala v. INS, 488

14 F.3d 1061, 1063 (9th Cir. 2007) (internal citation omitted). A case must be dismissed if it

15 becomes moot at any stage. See City of Mesquite v. Aladdin’s Castle, 455 U.S. 283, 288 (1982).

16 In the context of a habeas petition, the “case or controversy requirement requires a finding of

17 mootness if (1) the petitioner has received the relief requested in the petition; or (2) the court is

18 unable to provide the petition with the relief sought.” Aniyeloye v. Birkholz, 2023 WL 4868545,

19 at *1 (C.D. Cal. July 31, 2023) (citing Munoz v. Rowland, 104 F.3d 1096, 1097-98 (9th Cir.

20 1997)); see also Dominguez v. Kernan, 906 F.3d 1127, 1132 (9th Cir. 2018) (case is moot when it

21 is “impossible for a court to grant any effectual relief” on petitioner’s claim).

22 Here, Petitioner alleges the BOP policy unlawfully excludes him from earning and

23 applying FTCs under the FSA because he had an immigration detainer. (Doc. No. 1 at 6). On

24 November 18, 2022, the BOP issued Program Statement 5410.01 modifying its procedures to

25 allow inmates with detainers to earn FTCs, if otherwise eligible, but precluding them from

26 applying the FTCs until the detainers were resolved. U.S. Dep't of Justice, Federal Bureau of

27 Prisons, Program Statement No. 5410.01, First Step Act of 2018 - Time Credits: Procedures for

28 Implementation of 18 U.S.C. 3632(d)(4), at 17 (Nov. 18, 2022),

1 https://www.bop.gov/policy/progstat/5410_01_cn2.pdf (last visited October 23, 2023). More

2 recently, on February 6, 2023, the BOP issued a change notice to the Program Statement deleting

3 the requirement that inmates have no detainers in order to apply FTCs. U.S. Dep't of Justice,

4 Federal Bureau of Prisons, Change Notice to Program Statement No. 5410.01, First Step Act of

5 2018 - Time Credits: Procedures for Implementation of 18 U.S.C. 3632(d)(4) (Feb. 6, 2023),

6 https://www.bop.gov/policy/progstat/5410.01_cn2.pdf (last visited October 23, 2023); see also

7 Alatorre v. Derr, 2023 WL 2599546, at *5 (D. Haw. Mar. 22, 2023) (“As a result of Change

8 Notice 5410.01, federal prisoners subject to immigration detainers are no longer automatically

9 prohibited from applying their earned time credits.”).

10 Therefore, pursuant to current BOP policy, Petitioner is no longer precluded from earning

11 and applying FTCs solely due to an immigration detainer. Rather, as noted by Respondent,

12 “Petitioner is currently eligible to apply FSA FTCs, has 365 days of applied FTCs toward early

13 transfer to supervised release, and has a projected release date of December 11, 2023.” (Doc. No.

14 12-1 at 3). Because Petitioner has received the relief requested, and the challenged policy is no

15 longer in place, the operative Petition is moot. Thus, the Court lacks jurisdiction to consider any

16 claims raised in the Petition.

17 B. Failure to Exhaust Administrative Remedies

18 “Federal prisoners [generally] are required to exhaust their federal administrative

19 remedies prior to bringing a petition for a writ of habeas corpus in federal court.” Martinez v.

20 Roberts, 804 F.2d 570, 571 (9th Cir. 1986); see also Ward v. Chavez, 678 F.3d 1042 (9th Cir.

21 2012). However, the requirement that federal prisoners exhaust administrative remedies before

22 filing a habeas corpus petition was judicially created; it is not a statutory requirement. Brown v.

23 Rison, 895 F.2d 533, 535 (9th Cir. 1990), overruled on other grounds by Reno v. Koray, 515 U.S.

24 50, 54-55 (1995). Because exhaustion is not required by statute, it is not jurisdictional. Id. (citing

25 Morrison-Knudsen Co., Inc. v. CHG Int’l, Inc., 811 F.2d 1209, 1223 (9th Cir. 1987)). If

26 petitioner has not properly exhausted his claims, the district court, in its discretion, may

27 “determine whether to excuse the faulty exhaustion and reach the merits or require the petitioner

28 to exhaust his administrative remedies before proceeding in court.” Id.

1 Requiring a petitioner to exhaust administrative remedies (1) aids judicial review “by

2 allowing the appropriate development of a factual record in an expert forum,” (2) conserves “the

3 court's time because of the possibility that the relief applied for may be granted at the

4 administrative level,” and (3) allows “the administrative agency an opportunity to correct errors

5 occurring in the course of administrative proceedings.” Ruviwat v. Smith, 701 F.2d 844, 845 (9th

6 Cir. 1983) (per curiam). Dismissal is appropriate when a federal prisoner has not exhausted the

7 administrative remedies made available by the BOP. See Quinonez v. McGrew, 649 F. App'x 475

8 (9th Cir. 2016) (affirming district court's dismissal of a § 2241 petition where the petitioner “did

9 not complete any level of the BOP's Administrative Remedy Program and there is no indication

10 that his pursuit of those remedies would be futile”). However, the Court may waive the

11 exhaustion requirement when administrative remedies are inadequate, irreparable injury may

12 occur without immediate judicial relief, or exhaustion otherwise would be futile. Laing v.

13 Ashcroft, 370 F.3d 994, 1000-01 (9th Cir. 2004) (“[D]istrict court’s habeas jurisdiction under 28

14 U.S.C. § 2241 is ordinarily reserved for instances in which no other judicial remedy is

15 available.”).

16 When seeking administrative remedies, an inmate must first attempt informal resolution

17 (BP-8). 28 C.F.R. § 542.13. Thereafter, the BOP makes available a formal three-level

18 Administrative Remedy Program: (1) a Request for Administrative Remedy (BP-9) filed at the

19 institution where the inmate is incarcerated; (2) a Regional Administrative Remedy Appeal (BP-

20 10) filed at the Regional Office for the geographic region in which the inmate's institution is

21 located; and (3) a Central Office Administrative Remedy Appeal (BP-11) filed with the Office of

22 General Counsel. 28 C.F.R. § 542.10 et seq.

23 Here, Respondent indicates Petitioner has not presented his grounds for relief at any level

24 of the BOP administrative remedy process. (Doc. No. 12-1 at 4). Petitioner appears to concede

25 that he did not present either of his two grounds for relief at any level, and contends any appeal

26 would be futile because he is challenging a BOP policy. (Doc. No. 1 at 7, 16-18). However, as

27 discussed supra, subsequent to the filing of his Petition, BOP policy removed any restriction on

28 earning and applying FTCs under the FSA based on an immigration detainer. Thus, exhaustion

1 | would not be futile in this case, and the exhaustion requirement should not be excused. In the

2 | alternative, the Petition is subject to dismissal because Petitioner failed to exhaust administrative

3 | remedies.

4 Accordingly, it is ORDERED:

5 1. Respondent’s Motion to Dismiss (Doc. No. 12) is GRANTED.

6 2. The Petition for Writ of Habeas Corpus (Doc. No. 1) is DISMISSED.

7 3. The Clerk of Court is directed to terminate any pending motions and close this case.

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” | Dated: _ October 25, 2023 Mihaw. Th. foareh Hack

10 HELENA M. BARCH-KUCHTA

1 UNITED STATES MAGISTRATE JUDGE

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