The opinion
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8 UNITED STATES DISTRICT COURT
9 EASTERN DISTRICT OF CALIFORNIA
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11 VICTOR MOLINERO PUENTE, No. 1:23-cv-00083-CDB (HC)
12 Petitioner, ORDER GRANTING RESPONDENT’S
MOTION TO DISMISS
13 v.
(Doc. 22)
14 WARDEN,
15 Respondent.
16
17 Background
18 Petitioner Victor Molinero Puente (“Petitioner”), a federal prisoner proceeding pro se and
19 in forma pauperis, initiated this action by filing a petition for writ of habeas corpus pursuant to 28
20 U.S.C. § 2241. (Doc. 1).
21 Following a preliminary review of the petition and finding that it is not clear from the face
22 of the petition whether Petitioner is entitled to relief, on June 23, 2025, the Court ordered
23 Respondent to file a response to Petitioner’s petition. (Doc. 10). After the Court’s grant of an
24 extension of time, on September 19, 2025, Respondent timely filed a motion to dismiss the petition.
25 (Doc. 22). Because Respondent’s motion is based in part on an argument that Petitioner is
26 statutorily barred from being awarded the relief he seeks as the subject of a final order of removal,
27 the Court directed Respondent to file a copy of the removal order; Respondent filed that order on
28 November 5, 2025. (Doc. 34). After a variety of delays, including delays attributable to Petitioner’s
1 contention that he did not receive a copy of the motion to dismiss, (Docs. 31, 32, 35), on December
2 4, 2025, Petitioner filed an opposition to the motion. (Doc. 36).1
3 Legal Standard
4 A. Motion to Dismiss
5 Under Rule 4 of the “Rules Governing Section 2254 Cases in the United States District
6 Courts,” if a petition seeking a writ of habeas corpus is not dismissed at screening, the judge “must
7 order the respondent to file an answer, motion, or other response” to the petition. R. Governing
8 2254 Cases 4.2 The Advisory Committee Notes to Habeas Rule 4 provide that “the judge may want
9 to authorize the respondent to make a motion to dismiss based upon information furnished by
10 respondent.” A motion to dismiss a petition for writ of habeas corpus is construed as a request for
11 the court to dismiss under Habeas Rule 4. O’Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990).
12 A district court must dismiss a habeas petition if it “plainly appears” that the petitioner is not entitled
13 to relief. Valdez v. Montgomery, 918 F.3d 687, 693 (9th Cir. 2019).
14 B. The First Step Act
15 The First Step Act (“FSA”) was enacted on December 21, 2018, and implemented several
16 prison and sentencing reforms, including provisions governing computation of good time credits,
17 reducing and restricting mandatory minimum sentences, safety valve eligibility, retroactive
18 application of the FSA, and the availability of early release. First Step Act of 2018, Pub. L. No.
19 115-391, 132 Stat. 5194 (2018).
20 With respect to earned time credit (“ETCs”), the Ninth Circuit has described the FSA’s
21 amendments as follows:
22 [P]aragraph 102(b)(1) amends [18 U.S.C.] § 3624 by adding subsection (g),
which is relevant to the Act’s creation of an earned time credit system. [132
23 Stat.] at 5210-13. The Act requires that, within 210 days of its enactment, the
Attorney General establish a “risk and needs assessment system” to, broadly
24 speaking, review each prisoner's recidivism risk level, award earned time credit
25 1 Following all parties’ expression of consent to the jurisdiction of a U.S. magistrate
26 judge, on August 22, 2025, this action was reassigned to the undersigned for all purposes. (Doc.
18) (citing 28 U.S.C. § 636(c)(1).
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2 The Rules Governing § 2254 cases in the United States Courts (“Habeas Rules”) are
28 appropriately applied to proceedings undertaken pursuant to 28 U.S.C. § 2241. Habeas Rule 1(b).
1 as an incentive for participation in recidivism reduction programming, and
“determine when a prisoner is ready to transfer into prerelease custody or
2 supervised release in accordance with section 3624.” § 101(a), 132 Stat. at
5196-97. Section 3624(g) details the criteria for when a prisoner becomes
3 eligible, considering earned time credit, for transfer to prerelease custody or
supervised release. § 102(b), 132 Stat. at 5210-13.
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5 Bottinelli v. Salazar, 929 F.3d 1196, 1197-98 (9th Cir. 2019). In accordance with 18 U.S.C. § 3622,
6 the United States Department of Justice published the risk and needs assessment system on July
7 19, 2019.3 Pursuant to 18 U.S.C. § 3621(h)(1), all inmates in the U.S. Bureau of Prisons (“BOP”)
8 system were to receive an initial assessment using the risk and needs assessment system known as
9 the Prisoner Assessment Tool Targeting Estimated Risk and Need (“PATTERN”) by January 15,
10 2020.4 On January 13, 2022, the Department of Justice announced that the BOP had finalized the
11 FSA time credit rule, and on January 19, 2022, the final rule was published. FSA Time Credits, 87
12 Fed. Reg. 2705-01, 2022 WL 159155 (Jan. 19, 2022) (codified at 28 C.F.R. §§ 523, 541). Prisoners
13 “who successfully complete[ ] evidence-based recidivism reduction programming or productive
14 activities” “shall earn 10 days of time credits for every 30 days of successful participation.” 18
15 U.S.C. § 3632(d)(4)(A). A prisoner determined “to be at a minimum or low risk for recidivating,
16 who, over 2 consecutive assessments, has not increased their risk of recidivism, shall earn an
17 additional 5 days of time credits for every 30 days of successful participation in evidence-based
18 recidivism reduction programming or productive activities.” 18 U.S.C. § 3632(d)(4)(A)(ii).
19 Relevant here, inmates who are the subject of a final order of removal are not eligible for
20 application of ETCs under the FSA. See 18 U.S.C. § 3632(d)(4)(E); Morales-Ramirez v. Arviza,
21 No. 24-3681, 2025 WL 618362, at *1 (9th Cir. Feb. 26, 2025).
22 ///
23
3 Press Release, Department of Justice Announces the Release of 3,100 Inmates Under
24 First Step Act, Publishes Risk and Needs Assessment System (July 19, 2019),
https://www.justice.gov/opa/pr/department-justice-announces-release-3100-inmates-under-first-
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step-act-publishes-risk-and (last visited Feb. 5, 2026).
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4 Press Release, Department of Justice Announces Enhancements to the Risk Assessment
27 System and Updates on First Step Act Implementation (Jan. 15, 2020),
https://www.justice.gov/opa/pr/department-justice-announces-enhancements-risk-assessment-
28 system-and-updates-first-step-act (last visited Feb. 5, 2026).
1 Discussion
2 A. Petitioner’s Claims
3 Petitioner asserts that he is entitled to the award of ETCs under the FSA and that BOP
4 “discriminates” [against] non-U.S. Citizens inmates like Petitioner” by excluding them from
5 obtaining ETCs. (Doc. 1 at 1-2). For relief, Petitioner seeks an order “[d]irect[ing] the B.O.P. to
6 not to [sic] exclude and grant non-U.S. Citizens inmates from participating in a one-year sentence
7 reduction granted by the FSA through the Earned Time Credits Program (ETCP).” Id. at 6.
8 Following his filing of the petition, Petitioner was transferred to his current facility of
9 incarceration (Rochester Federal Medical Center). Thereafter, on July 16, 2025, Petitioner filed a
10 “Notice of Supporting Document.” (Doc. 14). Therein, Petitioner asserts that ETCs he had been
11 accruing at his former facility of incarceration were “taken away” upon his arrival at FMC
12 Rochester. Id. at 1. Petitioner attaches documents purportedly showing this removal of ETCs.
13 B. Respondent’s Motion to Dismiss and Plaintiff’s Opposition
14 Respondent moves to dismiss the petition on the grounds that Petitioner is statutorily
15 ineligible to earn and receive ETCs because he is the subject of a final order of removal. (Doc. 22
16 at 2-3) (citing inter alia 18 U.S.C. § 3632(d)(4)(E)).5 In a supporting declaration, a BOP paralegal
17 specialist attests that BOP has deemed Petitioner ineligible to receive ETCs based on BOP’s receipt
18 of an immigration detainer from the U.S. Department of Homeland Security (“DHS”), dated April
19 12, 2024, in which DHS indicates that Petitioner is the subject of a final order of removal. See
20 (Doc. 22-1 ¶¶ 5-6) (citing Attachments 1 & 4). In support of the motion to dismiss, on October 1,
21 2025, Respondent filed and served Petitioner a copy of the final order of removal, accompanied by
22 an application to seal. See (Doc. 26 [notice and proof of service]; Doc. 26-1 [order of removal]).
23 When the Court denied Respondent’s application to seal, at the Court’s direction, Respondent filed
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5 Respondent also moves to dismiss on the grounds that Petitioner failed to exhaust his
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administrative remedies prior to commencing this habeas action. Id. at 4-5. Petitioner concedes
26 he did not exhaust his administrative remedies but asserts he should be relieved of any such
obligation because exhaustion would be futile given the BOP’s regulations excluding inmates
27 subject to immigration detainers from eligibility to earn ETCs. (Doc. 1 at 2). The Court finds
Petitioner’s futility argument meritorious and, thus, exercises its discretion to waive the
28 exhaustion requirement. See Brown v. Rison, 895 F.2d 533, 535 (9th Cir. 1990).
1 a copy of the order of removal, dated November 13, 2012 (redacting only the signatures of the
2 signing authorities). See (Doc. 34) (attached hereto as Exhibit A). The order of removal notes that
3 it was served upon Petitioner on November 13, 2012. Id.
4 In his opposition to Respondent’s motion to dismiss, Petitioner represents that he has “never
5 seen” nor been provided a copy of any order of removal and questions whether any such document
6 exists. (Doc. 36 at 2-3); id. at 3 (“Petitioner once more wishes to stress to this Honorable Court
7 that he has never been before any immigration Judge for any immigration proceedings in his case,
8 and has never received any such alleged order of deportation.”). Petitioner also attaches to his
9 oppositions certain documents reflecting that FMC Rochester staff changed his eligibility to accrue
10 ETCs from “Eligible” to “Ineligible.” Id. Petitioner also attaches a copy of the same immigration
11 detainer attached to Respondent’s motion (dated April 12, 2024) indicating that Petitioner is the
12 subject of a final order of removal. Id. Petitioner asserts that BOP staff “commonly used this form
13 to ‘Scare’ inmates from filing any legal remedies” and argues that the document “provides no proof
14 of any Deportation order.” Id.
15 C. Analysis
16 Inmates who are the subject of a final order of removal are not eligible for application of
17 earned time credits under the FSA. See 18 U.S.C. § 3632(d)(4)(E). An order of removal issued by
18 an immigration officer and approved by a supervisor pursuant to Section 235(b) of the Immigration
19 and Naturalization Act (“INA”) constitutes a final order of removal. See Mendoz-Linares v.
20 Garland, 51 F.4th 1146, 1153 (9th Cir. 2022) (citing 8 U.S.C. § 1252(a) & (b)); 8 C.F.R. §
21 235.3(b)(7) (“Any removal order entered by an examining immigration officer pursuant to section
22 235(b)(1) of the Act must be reviewed and approved by the appropriate supervisor before the order
23 is considered final.”).
24 Here, Petitioner is the subject of a removal order issued in expedited proceedings pursuant
25 to Section 235(b) of the INA by an immigration officer and approved by a supervisor. See (Exhibit
26 A). Accordingly, because he is the subject of a final order of removal, Petitioner is ineligible to
27 earn and apply ETCs under the FSA. Perlaza v. Warden, No. 1:24-cv-00693-JLT-EPG-HC, 2024
28 WL 4931176, at *3 (E.D. Cal. Dec. 2, 2024) (citing cases), F&R adopted, 2025 WL 217979 (Jan.
1 } 16, 2025). Accord, Onebunne v. Warden, No. 2025 WL 2483346, at *1 (E.D. Cal. Aug. 28, 2025)
2 | (‘The First Step Act expressly disallows inmates subject to a final order of removal from receiving
3 | earned time credits to reduce the length of their incarceration.”) (citing 18 U.S.C. §
4 | 3632(d)(4)(E)()).
5 Conclusion and Order
6 Accordingly, IT IS HEREBY ORDERED that:
7 1. Respondent’s motion to dismiss (Doc. 22) is GRANTED;
8 2. Petitioner’s petition for writ of habeas corpus is DISMISSED; and
9 3. The Clerk of the Court is DIRECTED to enter judgment for Respondent and to close
10 this case.
11 | ITIS SO ORDERED.
'2 | Dated: __February 9, 2026 | Word by
13 UNITED STATES MAGISTRATE JUDGE
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3 EXHIBIT A
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1 EURniItCed G SRtaAtNesT A t t o r n e y
2 HEIKO P.COPPOLA
Assistant United States
3 Attorney 501 I Street, Suite
10-100 Sacramento, CA 95814
4 Telephone: (916) 554-2700
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Attorneys for Respondent
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8 IN THE UNITED STATES DISTRICT COURT
9 EASTERN DISTRICT OF CALIFORNIA
10
VICTOR MOLINERO PUENTE, CASE NO. 1:23-CV-00083-CDB
11
Petitioner, EXHIBIT TO ECF 30 (PETITIONER'S
12 REDACTED NOTICE AND ORDER OF
v. EXPEDITED REMOVAL
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WARDEN,
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Respondent.
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eee EE EOE EI NDE OER SENSED ERS OD
Department of Homeland Security Notice and Order of Expedited Removal
ag ET]
DETERMINATION OF INADMISSIBILITY gyent No:LRS$1311000175
File No: A089 714 123
Ni
Date: ovember 13, □□□□
In the Matter of: VICTOR MANUEL MOLINERO-PUENTE
Pursuant to section 235(b)(1) of the Immigration and Nationality Act (Act), (8 U.S.C. 1225(b)(1)), the
Department of Homeland Security has determined that you are inadmissible to the United States under
section(s) 212(a) D1 (6)(C)G); 0 (6)(C)(ii); Bd (7)(AN@ CD); 0 (7)(AYMID; 0 (7)(B)G)(); and/or D □□□□□□ □□
of the Act, as amended, and therefore are subject to removal, in that:
1. You are an immigrant not in possession of a valid unexpired immigrant visa, reentry
permit, border crossing card, or other valid entry document required by the Immigration
and Nationality Act; To wit: you were apprehended within 100 air miles of the
international boundary of the United States of America and Mexico within 14 days of having
illegally entered the U.S. by crossing the Rio Grande River in the Southern District of
Texas. You illegally entered with the intent to reside and seek employment in the United
States. You were not inspected or admitted by an Immigration Officer at a port of entry
designated by the Attorney General.
LUIS RIVERA
U_S BORDER PATROL AGENT
Name and title of immigration officer (Print) jon officer
SS □□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□
ORDER OF REMOVAL
UNDER SECTION 235(b)(1) OF THE ACT
Based upon the determination set forth above and evidence presented during inspection or examination pursuant
to section 235 of the Act, and by the authority contained in section 235(b)(1) of the Act, you are found to be
inadmissible as charged and ordered removed from the United States.
LUIS RIVERA
BORDER PATROL AGENT a =
Name and title of immigration officer (Print) pery on officer
MIGUEL VALENCIA T/
ACTING FIELD OPERATIONS SUPERVISOR
Name and title of supervisor (Print) Bin 1 isor, if available
C Check here if supervisory concurrence was obtained by telephon@3—s A 10 supervisor on duty).
CERTIFICATE OF SERVICE
= □
I personally a upon the above-named person on _ Uf C3.
(Date)
Signa “of immigration officer