The opinion
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8 UNITED STATES DISTRICT COURT
9 FOR THE EASTERN DISTRICT OF CALIFORNIA
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11 HECTOR GERMAN-REYES, No. 1:25-cv-00742-SKO (HC)
12 Petitioner, ORDER DIRECTING CLERK OF COURT
TO ASSIGN DISTRICT JUDGE
13 v.
FINDINGS AND RECOMMENDATION
14 TO DISMISS PETITION FOR WRIT OF
WARDEN, FCI MENDOTA, HABEAS CORPUS
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Respondent. [TWENTY-ONE DAY DEADLINE]
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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 18, 2025, Petitioner filed the instant petition in this Court. Petitioner is in the
21 custody of the Bureau of Prisons (“BOP”) at FCI-Mendota. He challenges the computation of his
22 federal sentence by the BOP. He claims the BOP wrongfully found him ineligible to receive
23 earned time credits under the First Step Act because of a detainer. The petition is unexhausted.
24 Therefore, the Court will 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 he has not administratively exhausted his claims, but contends
18 exhaustion should be waived for futility because he is challenging an established BOP policy.
19 Petitioner alleges the BOP found him ineligible to earn First Step Act (“FSA”) time credits solely
20 because ICE has lodged a detainer reflecting only that removal proceedings are pending. (Doc. 1
21 at 21.) Although he claims he is not subject to a final order of removal, the attached FSA Time
22 Credit Assessment states that a deportation order has been issued. (Doc. 1 at 23.)
23 Before November 18, 2022, the BOP took the position that inmates with detainers were
24 ineligible for FSA credits. On November 18, 2022, the BOP issued Program Statement 5410.01
25 modifying its procedures to allow inmates with detainers to earn FSA credits; the inmates could
26 not have those credits applied until the detainers were resolved. U.S. Dep't of Justice, Federal
27 Bureau of Prisons, Program Statement No. 5410.01, First Step Act of 2018 - Time Credits:
28 Procedures for Implementation of 18 U.S.C. 3632(d)(4) (Nov. 18, 2022),
1 https://www.bop.gov/policy/progstat/5410.01_cn2.pdf.
2 On February 6, 2023, the BOP issued a change notice to the program statement in which
3 the BOP deleted the requirement that inmates have no detainers to have FSA credits applied to
4 their sentence. U.S. Dep't of Justice, Federal Bureau of Prisons, Change Notice to Program
5 Statement No. 5410.01, First Step Act of 2018 - Time Credits: Procedures for Implementation of
6 18 U.S.C. 3632(d)(4) (Feb. 6, 2023), https://www.bop.gov/policy/progstat/5410.01_cn2.pdf.
7 Thus, Petitioner is not barred pursuant to BOP policy from earning FSA credits and having them
8 applied to his sentence due solely to a detainer.
9 The exhaustion requirement “is not lightly to be disregarded.” Murillo v. Mathews, 588
10 F.2d 759, 762, n.8 (9th Cir. 1978) (citation omitted). A “key consideration” in exercising such
11 discretion is whether “relaxation of the requirement would encourage the deliberate bypass of the
12 administrative scheme[.]” Laing v. Ashcroft, 370 F.3d 994, 1000 (9th Cir. 2004) (internal
13 quotation marks omitted). Here, the exhaustion requirement should not be excused because
14 Petitioner has deliberately bypassed the administrative scheme, and permitting the petition to go
15 forward would only encourage further deliberate bypass of the administrative process.
16 As noted above, the BOP has clarified its position that inmates with detainers are eligible
17 to earn FSA time credits and have them applied to their sentence. The question here is not a
18 “purely legal one” as Petitioner maintains (Doc. 1 at 14); it is a factual one. Petitioner claims the
19 immigration detainer shows only that ongoing removal proceedings are pending. (Doc 1 at 21.)
20 The immigration detainer is dated May 14, 2018. On the other hand, the FSA Time Credit
21 Assessment reflects the existence of a detainer “with deportation order.” (Doc. 1 at 23.) The
22 document further reflects the order was dated October 4, 2018. Thus, it is likely removal
23 proceedings were ongoing as of May 14, 2018, and a removal order was issued thereafter on
24 October 4, 2018. This factual discrepancy is why Petitioner should have been presented his
25 claims administratively prior to seeking federal court intervention. For this reason, the Court
26 does not find that pursuing administrative remedies would be futile. The Court finds the petition
27 should be dismissed for failure to exhaust administrative remedies.
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 the case, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of the
9 Local Rules of Practice for the United States District Court, Eastern District of California. Within
10 twenty-one (21) days after being served with a copy of this Findings and Recommendation, a
11 party may file written objections with the Court and serve a copy on all parties. Id. The document
12 should be captioned, “Objections to Magistrate Judge’s Findings and Recommendation” and shall
13 not exceed fifteen (15) pages, except by leave of court with good cause shown. The Court will not
14 consider exhibits attached to the Objections. To the extent a party wishes to refer to any
15 exhibit(s), the party should reference the exhibit in the record by its CM/ECF document and page
16 number, when possible, or otherwise reference the exhibit with specificity. Any pages filed in
17 excess of the fifteen (15) page limitation may be disregarded by the District Judge when
18 reviewing these Findings and Recommendations pursuant to 28 U.S.C. § 636 (b)(1)(C). The
19 parties are advised that failure to file objections within the specified time may result in the waiver
20 of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014). This
21 recommendation is not an order that is immediately appealable to the Ninth Circuit Court of
22 Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure,
23 should not be filed until entry of the District Court's judgment.
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IT IS SO ORDERED.
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26 Dated: June 24, 2025 /s/ Sheila K. Oberto .
UNITED STATES MAGISTRATE JUDGE
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