(HC) Lopez-Diaz v. Warden

1

2

3

4

5

6

7

8 UNITED STATES DISTRICT COURT

9 FOR THE EASTERN DISTRICT OF CALIFORNIA

10

11 JOSE JAVIER LOPEZ-DIAZ, No. 1:23-cv-01377-SKO (HC)

12 Petitioner, ORDER DIRECTING CLERK OF COURT

TO ASSIGN DISTRICT JUDGE

13 v.

FINDINGS AND RECOMMENDATIONS

14 WARDEN, FCI-MENDOTA, TO GRANT RESPONDENT’S MOTION

TO DISMISS

15 Respondent.

[Doc. 7]

16

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 September 20, 2023, Petitioner filed the instant habeas petition. (Doc. 1.) On

21 November 21, 2023, Respondent filed a motion to dismiss the petition. (Doc. 7.) Respondent

22 contends the petition should be dismissed for lack of jurisdiction and failure to exhaust

23 administrative remedies. (Doc. 7.) Petitioner did not file an opposition. Having reviewed the

24 pleadings, the Court will RECOMMEND Respondent’s motion to dismiss be GRANTED.

25 DISCUSSION

26 I. Motion to Dismiss

27 The Ninth Circuit has allowed respondents to file a motion to dismiss in lieu of an answer.

28 See, e.g., O’Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990) (using Rule 4 to evaluate

1 motion to dismiss petition for failure to exhaust state remedies); White v. Lewis, 874 F.2d 599,

2 602-03 (9th Cir. 1989) (using Rule 4 as procedural grounds to review motion to dismiss for state

3 procedural default); Hillery v. Pulley, 533 F.Supp. 1189, 1194 & n.12 (E.D. Cal. 1982) (same).

4 The Court will review the motion under Rule 4 standards. See Hillery, 533 F. Supp. at 1194 & n.

5 12.

6 II. Background

7 Petitioner is serving a 144-month term of imprisonment for his conviction of conspiracy to

8 possess with intent to distribute methamphetamine in violation of 21 U.S.C. § 846 and possession

9 of methamphetamine with intent to distribute in violation of 21 U.S.C. § 841(a)(1). (Doc. 7-1 at

10 33.1)

11 Petitioner is incarcerated at Federal Correctional Institution in Mendota, California. In his

12 petition, Petitioner claims that the Bureau of Prisons (“BOP”) determined him ineligible for First

13 Step Act (“FSA”) credits because he is subject to an immigration detainer, not a final order of

14 removal. (Doc. 1 at 6.) According to BOP records, Petitioner has been determined ineligible to

15 apply FSA time credits to his sentence, not because of an immigration detainer, but because he is

16 subject to a “final order of removal.” (Doc. 7-1 at 7-8.) Currently, he has a projected release date

17 of October 29, 2024. (Doc. 7-1 at 3.)

18 According to the BOP’s records of its Administrative Remedy Program, Petitioner has

19 never submitted an Administrative Remedy Request with respect to the BOP’s calculation of FSA

20 time credits. (Doc. 7-1 at 3.)

21 III. The First Step Act

22 The First Step Act was enacted on December 21, 2018, and implemented a number of

23 prison and sentencing reforms, including computation of good time credits, reducing and

24 restricting mandatory minimum sentences, safety valve eligibility, retroactive application of the

25 Fair Sentencing Act, and the availability of early release. First Step Act of 2018, Pub. L. No. 115-

26 391, 132 Stat. 5194 (2018).

27

28 1 Citations are to ECF pagination unless noted.

1 Under the First Step Act, prisoners “who successfully complete[ ] evidence-based

2 recidivism reduction programming or productive activities” “shall earn 10 days of time credits for

3 every 30 days of successful participation.” 18 U.S.C. § 3632(d)(4)(A). A prisoner determined “to

4 be at a minimum or low risk for recidivating, who, over 2 consecutive assessments, has not

5 increased their risk of recidivism, shall earn an additional 5 days of time credits for every 30 days

6 of successful participation in evidence-based recidivism reduction programming or productive

7 activities.” 18 U.S.C. § 3632(d)(4)(A)(ii).

8 The BOP determined that Petitioner was eligible to earn FTCs pursuant to the First Step

9 Act, but the BOP determined that Petitioner was not eligible to have FTCs applied to his

10 sentence. The BOP’s determination is correct. According to the First Step Act,

11 A prisoner is ineligible to apply time credits under subparagraph (C) if the prisoner is the

subject of a final order of removal under any provision of the immigration laws (as such

12 term is defined in section 101(a)(17) of the Immigration and Nationality Act (8 U.S.C.

1101(a)(17))).

13

14 18 U.S.C. § 3632(d)(4)(E)(i) (emphasis added).

15 Respondent has submitted evidence in the form of an affidavit from Charles Hubbard,

16 Regional Correctional Programs Administrator, attesting he personally reviewed and verified the

17 existence of a Final Order of Removal dated for December 18, 2009, via a Notice of

18 Intent/Decision to Reinstate Prior Order, Form I-871, dated August 9, 2013, obtained by BOP

19 through the Department of Homeland Security’s Immigration and Customs Enforcement. (Doc. 7-

20 1 at 7-8.) Petitioner did not oppose Respondent’s motion and has not submitted any evidence

21 showing he is only subject to an immigration detainer. The statute is clear that Petitioner is not

22 eligible to have FTCs applied to his sentence because he is subject to a final order of removal

23 under immigration laws. Thus, Petitioner is statutorily barred and has no lawful basis to claim

24 application of FTCs against his sentence.

25 IV. Exhaustion

26 Before filing a petition for writ of habeas corpus, a federal prisoner challenging any

27 circumstance of imprisonment must first exhaust all administrative remedies. Martinez v.

28 Roberts, 804 F.2d 570, 571 (9th Cir. 1986); Chua Han Mow v. United States, 730 F.2d 1308,

1 1313 (9th Cir. 1984); Ruviwat v. Smith, 701 F.2d 844, 845 (9th Cir. 1983). The requirement that

2 federal prisoners exhaust administrative remedies before filing a habeas corpus petition was

3 judicially created; it is not a statutory requirement. Brown v. Rison, 895 F.2d 533, 535 (9th Cir.

4 1990). Thus, “because exhaustion is not required by statute, it is not jurisdictional.” Id. If

5 Petitioner has not properly exhausted his claims, the district court, in its discretion, may either

6 “excuse the faulty exhaustion and reach the merits or require the petitioner to exhaust his

7 administrative remedies before proceeding in court.”

8 The first step in seeking administrative remedies is a request for informal resolution. 28

9 C.F.R. § 542.13. When informal resolution procedures fail to achieve sufficient results, the BOP

10 makes available to inmates a formal three-level administrative remedy process: (1) a Request for

11 Administrative Remedy (“BP-9”) filed at the institution where the inmate is incarcerated; (2) a

12 Regional Administrative Remedy Appeal (“BP-10”) filed at the Regional Office for the

13 geographic region in which the inmate’s institution is located; and (3) a Central Office

14 Administrative Remedy Appeal (“BP-11”) filed with the Office of General Counsel. 28 C.F.R. §

15 542.10 et seq.

16 According to Respondent, Petitioner has never requested relief through the BOP’s

17 administrative remedy process with respect to FTCs. Thus, the claims are unexhausted. The

18 exhaustion requirement “is not lightly to be disregarded.” Murillo v. Mathews, 588 F.2d 759, 762,

19 n.8 (9th Cir. 1978) (citation omitted). A “key consideration” in exercising such discretion is

20 whether “relaxation of the requirement would encourage the deliberate bypass of the

21 administrative scheme[.]” Laing v. Ashcroft, 370 F.3d 994, 1000 (9th Cir. 2004) (internal

22 quotation marks omitted). The exhaustion requirement should not be excused in this case because

23 Petitioner has deliberately bypassed the administrative scheme. Had he properly sought

24 administrative relief, the BOP would have advised him of his immigration status and his

25 ineligibility for application of FTCs pursuant to 18 U.S.C. § 3632(d)(4)(E)(i).

26 ORDER

27 Accordingly, IT IS HEREBY ORDERED that the Clerk of Court is DIRECTED to assign

28 a district judge to this case.

1

2 RECOMMENDATION

3 For the foregoing reasons, the Court RECOMMENDS that Respondent’s motion to

4 dismiss be GRANTED.

5 This Findings and Recommendation is submitted to the United States District Court Judge

6 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of the

7 Local Rules of Practice for the United States District Court, Eastern District of California. Within

8 twenty-one (21) days after being served with a copy of this Findings and Recommendation, any

9 party may file written objections with the Court and serve a copy on all parties. Such a document

10 should be captioned “Objections to Magistrate Judge’s Findings and Recommendation.” Replies

11 to the Objections shall be served and filed within ten (10) court days (plus three days if served by

12 mail) after service of the Objections. The Court will then review the Magistrate Judge’s ruling

13 pursuant to 28 U.S.C. § 636 (b)(1)(C). The parties are advised that failure to file objections

14 within the specified time may waive the right to appeal the Order of the District Court. Martinez

15 v. Ylst, 951 F.2d 1153 (9th Cir. 1991). This recommendation is not an order that is immediately

16 appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1),

17 Federal Rules of Appellate Procedure, should not be filed until entry of the District Court's

18 judgment.

19

IT IS SO ORDERED.

20

21 Dated: January 5, 2024 /s/ Sheila K. Oberto .

UNITED STATES MAGISTRATE JUDGE

22

23

24

25

26

27

28