The opinion
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8 UNITED STATES DISTRICT COURT
9 FOR THE EASTERN DISTRICT OF CALIFORNIA
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11 JAMES CHRISTOPHER CASTLE, No. 2:24-cv-1722 CKD P
12 Petitioner,
13 v. ORDER
14 BUREAU OF PRISONS,
15 Respondent.
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17 Petitioner is a federal prisoner proceeding pro se with an application for writ of habeas
18 corpus under 28 U.S.C. § 2241. Petitioner is serving a combined sentence of 180 months in
19 prison for several offenses related to his defrauding financial institutions. 2:15-CR-0190 KJM
20 CSK, ECF No. 795. Sentence was imposed on May 10, 2022. Id. at ECF 792. Petitioner’s
21 projected release date is April 21, 2030. ECF No. 12-1 at 15.
22 I. Petitioner’s Claims
23 Petitioner claims he is entitled to more sentence credit under the 2018 “First Step Act” (FSA)
24 than is currently being applied to his sentence. Specifically, petitioner claims entitlement to:
25 1. 879 days additional sentence credit for time served prior to sentencing between July
26 10, 2017, and May 9, 2022 (claim 1).
27 2. 45 days additional sentence credit for time served in custody from sentencing through
28 arrival at a F.C.I. Terminal Island on August 9, 2022 (claim 2).
1 3. 24.5 days of additional sentence credit for time served between July 12 and August 30,
2 2023, while petitioner was “in transit” between F.C.I. Terminal Island, via F.C.I Victorville, and
3 F.C.I. Herlong, where petitioner currently resides (claim 3).
4 To be clear, petitioner does not assert he was denied credit for the actual days in custody
5 between the dates identified above. Rather, he asserts he is entitled to extra time credits under the
6 FSA.
7 II. Exhaustion of Administrative Remedies
8 Respondent argues that the petition should be dismissed for failure to exhaust
9 administrative remedies. A federal prisoner challenging any circumstance of imprisonment must
10 first exhaust all administrative remedies. E.g. Martinez v. Roberts, 804 F.2d 570, 571 (9th Cir.
11 1986). Martinez v. Roberts, 804 F.2d 570, 571 (9th Cir. 1986). The first step in the Federal
12 Bureau of Prisons’ (BOP) grievance process is a request for informal resolution. 28 C.F.R. §
13 542.13. When informal resolution procedures fail to achieve desired results, the BOP makes
14 available a formal three-level administrative remedy process: (1) a Request for Administrative
15 Remedy (“BP-9”) filed at the institution where the inmate is incarcerated; (2) a Regional
16 Administrative Remedy Appeal (“BP-10”) filed at the Regional Office for the geographic region
17 in which the inmate's institution is located; and (3) a Central Office Administrative Remedy
18 Appeal (“BP-11”) filed with the Office of General Counsel. 28 C.F.R. § 542.10 et seq.
19 The requirement that federal prisoners exhaust administrative remedies before filing a
20 habeas corpus petition was judicially created; it is not a statutory requirement. Brown v. Rison,
21 895 F.2d 533, 535 (9th Cir. 1990). Thus, “because exhaustion is not required by statute, it is not
22 jurisdictional.” Id. The exhaustion requirement can be waived if pursuing such remedies would
23 be futile. Fraley v. U.S. Bureau of Prisons, 1 F.3d 924, 925 (9th Cir.1993). Conversely, the court
24 requires exhaustion if “(1) agency expertise makes agency consideration necessary to generate a
25 proper record and reach a proper decision; (2) relaxation of the requirement would encourage the
26 deliberate bypass of the administrative scheme; and (3) administrative review is likely to allow
27 the agency to correct its own mistakes and to preclude the need for judicial review.” United
28 States v. Cal. Care Corp., 709 F.2d 1241, 1248 (9th Cir. 1983).
1 III. Analysis
2 It is undisputed that petitioner did not exhaust administrative remedies with respect to the
3 claims currently before the court. Petitioner claims exhaustion is futile. Because the court finds
4 that petitioner fails to state a claim upon which habeas relief can be granted, the court need not
5 reach the question of whether exhaustion as to the present claims is futile. Petitioner will be
6 granted leave to file an amended petition. If petitioner has not utilized the administrative process
7 with the claims he wishes to present in his amended petition, he may seek voluntarily dismissal of
8 this action, utilize the administrative process, and then file a new petition if he is not satisfied
9 with the outcome of the process. If, however, petitioner believes that exhaustion is futile, he can
10 attempt to demonstrate that in his amended petition for the court’s consideration.
11 With respect to futility, the court notes that respondent argues that petitioner categorically
12 cannot earn FSA credit between the date he was sentenced and his arrival at F.C.I Terminal
13 Island, and while he was in transit between F.C.I. Terminal Island and F.C.I. Herlong. Recent
14 district court decisions, including at least five from courts within the Ninth Circuit have rejected
15 the first argument.1 At least one decision from this district has rejected the second argument.2
16 These decisions suggest that exhaustion of administrative remedies concerning claims akin to
17 claims 2 and 3 is not futile.
18 As to the petition pending before the court, claim 1 is frivolous as it is clear under federal
19 law that FSA credit cannot be earned pre-sentencing. 18 U.S.C. § 3632(d)(4)(B)(ii). With respect
20 to claims 2 and 3, petitioner is not entitled to relief because petitioner fails to point to his
21 participation in any evidence-based recidivism reduction programs (“EBRRs”) or productive
22 activities (“PAs”) during the periods of time identified. See 18 U.S.C. § 3632(d)(4).
23 /////
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1 Tantuwaya v. Birkholz, No. 2:24-cv-02891-DMG (MAR), 2024 WL 4805423, at *2 (C.D. Cal.
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Oct 10, 2024); Jobin v. Warden F.C.I. Mendota, No. 1:23-cv-01700 WBS SKO (HC), 2024 WL
1367902, at *4 (E.D. Cal. April 1, 2024); Patel v. Barron, NO. C23-937-KKE, 2023 WL
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6311281, at *5 (W.D. Wash. Sept. 5, 2023); Huihui v. Derr, No. 22-00541 JAO-RT, 2023 WL
27 4086073, at *5 (D. Haw. June 20, 2023).
28 2 Jackson v. Doerer, No. 5:24-01353-ADS, 2024 WL 4719489, *8 (C.D. Cal. Nov. 7, 2024)
] If petitioner decides to file an amended petition, petitioner should consider omitting claim
2 || 1 as there does not appear to be any way petitioner can, in good faith, assert any basis for his
3 || earning FSA credit pre-sentencing. As for claims 2 and 3, petitioner must point to participation in
4 | EBBRs and / or PAs during the periods of time identified and specifically how, under law, he is
5 || entitled to more FSA credit than is being applied to his sentence due to participation.
6 Accordingly, IT IS HEREBY ORDERED that:
7 1. Petitioner’s motion for expedited action with respect to his petition for writ of habeas
8 || corpus (ECF No. 14) is DENIED as moot.
9 2. Respondent’s motion to dismiss for failure to exhaust administrative remedies (ECF
10 | No. 12) 1s DENIED.
11 3. Petitioner’s petition for a writ of habeas corpus (ECF No. 1) is dismissed. Petitioner is
12 || granted thirty days within which to file an amended petition. Failure to file an amended petition
13 || within 30 days will result in a recommendation that this action be dismissed.
14 4. Respondent need take no further action until directed by the court. Upon receipt of the
15 || amended petition, the court will conduct the preliminary review described in Rule 4 of the Rules
16 || Governing Section 2254 Cases.?
17 | Dated: March 12, 2025 / ae □□ / a Ly a
18 CAROLYN K DELANEY
19 UNITED STATES MAGISTRATE JUDGE
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53 castl722.fsa(2)
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Q_—_ xo dad
> The court determines that Rule 4 preliminary review is applicable to this case pursuant to the
28 | court’s authority to so order granted in Rule 1(b) of the same rules.