(HC) Martin v. Warden

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8 UNITED STATES DISTRICT COURT

9 FOR THE EASTERN DISTRICT OF CALIFORNIA

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11 MARTIN ARAIZA-JACOBO, No. 1:23-cv-00406-HBK (HC)

12 Petitioner, ORDER GRANTING RESPONDENT’S

MOTION TO DISMISS1

13 v.

(Doc. No. 18)

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WARDEN, FCI MENDOTA,

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Respondent.

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17 Petitioner Martin Araiza-Jacobo (“Petitioner”), a federal inmate, is proceeding pro se on

18 his 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.). Specifically, the Petition raises one claim: the

22 Bureau of Prisons (“BOP”) unlawfully excluded Petitioner and other “non-U.S. Citizen inmates”

23 from earning and applying earned time credits (FTCs), which contravenes the First Step Act. (Id.

24 at 2-5); see 18 U.S.C. § 3632(d)(4)(A), (C) (providing that time credits earned from completion of

25 evidence-based recidivism reduction programming productive activities shall be applied toward

26 time in prerelease custody or supervised release). Petitioner requests that the Court direct the

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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. 21).

1 BOP not to exclude “non-U.S. Citizen inmates from participating in a one-year sentence

2 reduction granted by the FSA through the Earned Time Credits Program.” (Doc. No. 1 at 6).

3 Petitioner further contends exhaustion would be futile because he is challenging BOP regulations

4 and procedures, and therefore he is not required to exhaust administrative remedies. (Id. at 2-3).

5 In response, Respondent filed a Motion to Dismiss with Appendix on June 16, 2023.

6 (Doc. No. 18, 18-1). Respondent argues the Court lacks jurisdiction to consider the Petition

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

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

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

10 so has expired. (See Doc. No. 15 at ¶ 4, advising Petitioner that he has twenty-one (21) days to

11 file a response if Respondent files a motion to dismiss). For the reasons set forth more fully

12 herein, the Court grants Respondent’s Motion to Dismiss.

13 I. BACKGROUND

14 A. Procedural History

15 In 2017, Petitioner was convicted after jury trial in the Southern District of Texas for

16 conspiracy to possess with intent to distribute more than 50 grams of methamphetamine in

17 violation of 21 U.S.C. §§§ 846, 841(a)(1), 841(b)(1)(A), possession with intent to distribute more

18 than 50 grams of methamphetamine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and two

19 counts of unlawful importation of illicit drugs in violation of 21 U.S.C. §§§ 963, 952(a),

20 960(b)(1). Petitioner was sentenced to serve an aggregate term of 120 months of federal

21 incarceration. See United States v. Araiza-Jacobo, 1:17-cr-00088-1, Crim. Doc. Nos. 1, 10, 50,

22 59 (S.D. Tx.).2 At the time Petitioner commenced this action, he was incarcerated in FCI

23 Mendota. After Petitioner filed the operative Petition demanding calculation of his earned time

24 credit under the First Step Act, BOP completed an FSA review of Petitioner’s sentence and

25 determined he has 365 of applied FTCs toward early transfer to supervised release, resulting in an

26 advancement of his projected release date to July 27, 2024. (Doc. No. 18-1 at 3, 7-8).

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

28 _.”

1 B. The First Step Act

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

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

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

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

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

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

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

9 prerelease custody or supervised release.” Id.

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

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

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

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

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

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

16 3632(d)(4)(A)(ii); Orihuela v. Engleman, 2022 WL 18106676, at *1 (C.D. Ca. Nov. 3, 2022) (“A

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

18 EBRRs and Pas.”).

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

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

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

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

23 January 13, 2022. Id.

24 II. APPLICABLE LAW AND ANALYSIS

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

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

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

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

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

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

3 418, 420 (9th Cir. 1990). Under Rule 4, a district court must dismiss a habeas petition if it

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

5 687, 693 (9th Cir. 2019); Boyd v. Thompson, 147 F.3d 1124, 1127 (9th Cir. 1998).

6 A. Mootness

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

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

9 (2013) (“Article III demands that an actual controversy persist throughout all stages of

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

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

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

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

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

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

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

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

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

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

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

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

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

23 1997)); see also Dominguez v. Kernan, 906 F.3d 1127, 1132 (9th Cir. 2018) (case is moot when it

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

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

26 applying FTCs under the FSA solely because he is not a U.S. citizen. (Doc. No. 1). On

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

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

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

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

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

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

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

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

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

8 2018 - Time Credits: Procedures for Implementation of 18 U.S.C. 3632(d)(4) (Feb. 6, 2023),

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

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

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

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

13 Therefore, pursuant to current BOP policy, Petitioner is not precluded from earning and

14 applying FTCs based on an immigration detainer. Rather, as noted by Respondent, “Petitioner is

15 currently eligible to apply FSA FTCs, has 365 days of applied FTCs toward early transfer to

16 supervised release, and has a projected release date of July 27, 2024.” (Doc. No. 18-1 at 3).

17 Because Petitioner has received the relief requested, and the challenged policy is no longer in

18 place, the operative Petition is moot. Thus, the Court lacks jurisdiction to consider any claims

19 raised in the Petition.

20 B. Failure to Exhaust Administrative Remedies

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

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

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

24 2012). However, the requirement that federal prisoners exhaust administrative remedies before

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

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

27 50, 54-55 (1995). Because exhaustion is not required by statute, it is not jurisdictional. Id. (citing

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

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

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

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

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

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

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

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

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

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

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

11 (9th Cir. 2016) (affirming district court's dismissal of a § 2241 petition where the petitioner “did

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

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

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

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

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

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

18 available.”).

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

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

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

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

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

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

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

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

27 of the BOP administrative remedy process. (Doc. No. 18-1 at 4). Petitioner appears to concede

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

1 | would be futile because he is challenging a BOP policy. (Doc. No. | at 2-3). However, as

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

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

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

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

6 | remedies.

7 Accordingly, it is ORDERED:

8 1. Respondent’s Motion to Dismiss (Doc. No. 18) is GRANTED.

9 2. The Petition for Writ of Habeas Corpus (Doc. No. 1) is DISMISSED as moot and/or

10 as unexhausted.

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

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'S | Dated: _ October 30, 2023 Mile. Wh. foareh Zaskth

14 HELENA M. BARCH-KUCHTA

UNITED STATES MAGISTRATE JUDGE

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