The opinion
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8 UNITED STATES DISTRICT COURT
9 FOR THE EASTERN DISTRICT OF CALIFORNIA
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11 HIEU MINH LE, Case No. 1:25-cv-01156-HBK (HC)
12 Petitioner, ORDER DENYING RESPONDENT’S
MOTION TO DISMISS AND GRANTING IN
13 v. PART AND DENYING IN PART PETITION
FOR WRIT OF HABEAS CORPUS1
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WARDEN, FCI MENDOTA, (Doc. 11)
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Respondent.
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18 Petitioner Hieu Minh Le, a federal inmate, proceeds pro se petition on a petition for writ
19 of habeas corpus under 28 U.S.C. § 2241 challenging the Bureau of Prisons’ (BOP) denial of First
20 Step Act earned time credits (ETCs). (Doc. 1). Respondent moves to dismiss for failure to
21 exhaust administrative remedies and, alternatively, argues the BOP properly denied ETCs under
22 its implementing regulations. (Doc. 11). For the reasons below, the motion to dismiss is denied,
23 and the petition is granted in part and denied in part.
24 I. BACKGROUND
25 In 2021, a jury in the Southern District of Iowa convicted Petitioner of conspiracy to
26 distribute 100 kilograms or more of marijuana, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B)
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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. 14).
1 and 21 U.S.C. § 846. On August 27, 2021, he was sentenced to 120-month imprisonment. See
2 United States v. Tran et al., 1:19-cr-00004-SHL-HCA-3, Crim. Docs. 216, 316 (S.D. Iowa).2
3 Petitioner was designated to FCI Mendota on December 15, 2021; and was housed there when he
4 filed this Petition of September 8, 2025. (Doc. 11-1 at 3, 6, 15). His current projected release
5 date, including good time credits, is October 5, 2029.3 (Id. at 3, 10).
6 Petitioner contends the BOP unlawfully refused to credit ETCs for time after his federal
7 sentence commenced but before his arrival at his designated BOP facility, in contravention of the
8 First Step Act (FSA). (Doc. 1 at 3). He claims entitlement to 129 days of ETCs if calculated
9 from April 5, 2021, or, alternatively, 54 days if calculated from August 27, 2021. (Id. at 7-8). He
10 seeks recalculation of his release and prerelease custody dates and a prompt transfer to the most
11 appropriate form of prerelease custody if warranted. (Id. at 9).
12 Respondent moved to dismiss the petition on February 4, 2026, arguing Petitioner failed
13 to exhaust administrative remedies and that, in any event, the BOP reasonably interpreted and
14 implemented the FSA in denying ETCs for the period before Petitioner arrived at his designated
15 facility. (Doc. 11). Petitioner untimely opposed the motion, on March 18, 2026. (Doc. 15).
16 Petitioner acknowledges non-exhaustion but asserts futility because he challenges a BOP-wide
17 regulation and policy. (Id at 7). Petitioner further argues that the BOP’s regulation conflicts with
18 the statutes governing sentence commencement and ETC eligibility. (Id at 2 (citing 18 U.S.C. §
19 3632(d)(4)). Respondent does not object to the timeliness of the opposition, and the Court
20 considers it on the merits.
21 II. APPLICABLE LAW AND ANALYSIS
22 A. Rule 4 Screening and Jurisdiction
23 Under Rule 4 of the Rules Governing Section 2254 Cases (applicable to § 2241
24 proceedings), the Court must dismiss a petition if it plainly appears that the petitioner is not
25 entitled to relief. A motion to dismiss a habeas petition is treated as a request for dismissal under
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27 2 The undersigned cites to the record in Petitioner’s underlying SDIA criminal case as “Crim. Doc. _.”.
3 According to BOP, Petitioner has earned 1473 program days, and 705 ETCs, 365 of which are projected
28 to be applied towards early release under the FSA. (Doc. 11-1 at 7, 11, 17).
1 Rule 4. O’Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990). Under Rule 4, a district court
2 must dismiss a habeas petition if it “plainly appears” that the petitioner is not entitled to relief.
3 See Valdez v. Montgomery, 918 F.3d 687, 693 (9th Cir. 2019); Boyd v. Thompson, 147 F.3d 1124,
4 1127 (9th Cir. 1998).
5 A court has jurisdiction under § 2241 to review claims that the BOP acted contrary to
6 federal law, violated the Constitution, or exceeded its statutory authority, but not to review
7 individualized ETC determinations made pursuant to 18 U.S.C. § 3632. Moon v. Thomas, 787 F.
8 Supp. 2d 1154, 1160 (D. Or. Apr. 1, 2011); Reeb v. Thomas, 636 F.3d 1224, 1228 (9th Cir. 2011)
9 (finding that while judicial review is available for BOP actions contrary to federal law or in
10 violation of the Constitution, or claims the BOP exceeds statutory authority, federal courts lack
11 jurisdiction to review BOP’s individualized determinations made pursuant to 18 U.S.C. § 3632).
12 B. Failure to Exhaust Administrative Remedies
13 Federal prisoners are generally required to exhaust administrative remedies before filing a
14 habeas corpus petition. Martinez v. Roberts, 804 F.2d 570, 571 (9th Cir. 1986); see also Ward v.
15 Chavez, 678 F.3d 1042 (9th Cir. 2012). However, the exhaustion requirement is judicially
16 created; it is not a statutory requirement. Brown v. Rison, 895 F.2d 533, 535 (9th Cir. 1990),
17 overruled on other grounds by Reno v. Koray, 515 U.S. 50, 54-55 (1995). Because exhaustion is
18 prudential, it is not jurisdictional. Id. (citing Morrison-Knudsen Co., Inc. v. CHG Int’l, Inc., 811
19 F.2d 1209, 1223 (9th Cir. 1987)). The BOP’s Administrative Remedy Program consists of an
20 informal attempt at resolution (BP-8) followed by three formal levels: (1) a Request for
21 Administrative Remedy (BP-9) filed at the institution where the inmate is incarcerated; (2) a
22 Regional Administrative Remedy Appeal (BP-10) filed at the Regional Office for the geographic
23 region in which the inmate's institution is located; and (3) a Central Office Administrative
24 Remedy Appeal (BP-11) filed with the Office of General Counsel. 28 C.F.R. § 542.10 et seq.
25 Here, there is no evidence that Petitioner completed the administrative process to the
26 Central office and thus he did not fully exhaust his administrative remedies. Instead, Petitioner
27 contends exhaustion should be excused as futile because he challenges the validity of a BOP
28 regulation applied uniformly systemwide.
1 The Court may waive the exhaustion requirement when administrative remedies are
2 inadequate, irreparable injury may occur without immediate judicial relief, or exhaustion
3 otherwise would be futile. Laing v. Ashcroft, 370 F.3d 994, 1000-01 (9th Cir. 2004) (“[D]istrict
4 court’s habeas jurisdiction under 28 U.S.C. § 2241 is ordinarily reserved for instances in which
5 no other judicial remedy is available.”). While the Court is generally disinclined to waive
6 exhaustion where a petitioner makes claims of futility in the context of earned time credits, under
7 the circumstances of this case the Court finds it appropriate to waive the prudential exhaustion
8 requirement. In this case, Respondent’s position is that the BOP’s regulation governing when
9 ETC eligibility begins is lawful and controlling, meaning the agency is bound by the very policy
10 Petitioner challenges. (Doc. 11 at 4-8). Because additional administrative review would almost
11 certainly result in denial and would not assist in developing a factual record or allow the agency
12 to correct the alleged legal error, the Court exercises its discretion to waive exhaustion as to
13 Petitioner’s facial challenge to the regulation. See, e.g., Modeste v. Birkholz, 809 F. Supp. 3d
14 891, 897-99 (D. Alaska Nov. 10, 2025); Dunaev v. Engleman, 2025 WL 2427998 (C.D. Cal. Mar.
15 27, 2025). See also Huihui v. Derr, 2023 WL 4086073, at *3 (D. Haw. June 20, 2023)
16 (“administrative review in this case is not likely to allow the agency to correct its own mistakes
17 and preclude the need for judicial review because the Court disagrees with Respondent’s reading
18 of the FSA”); Jobin v. Warden, FCI-Mendota, 2024 WL 1367902, at *3 (E.D. Cal. Apr. 1, 2024),
19 report and recommendation adopted, 2024 WL 2786898 (E.D. Cal. May 30, 2025).
20 C. The First Step Act and BOP Regulations
21 The FSA4 authorizes eligible inmates to earn ETCs for successful completion of evidence-
22 based recidivism reduction programming or productive activities. Under 18 U.S.C. §
23 3632(d)(4)(A), an inmate earns 10 days of time credits for every 30 days of successful
24 participation, with additional credits possible for certain low- and minimum-risk inmates.5 The
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4Enacted December 21, 2018, the FSA provided for considerable changes to the federal criminal code,
26 including several prison and sentencing reforms. First Step Act of 2018, Pub. L. No. 115-391, 132 Stat.
5194 (2018).
27 5 The FSA additionally authorized the BOP to use a risk and needs assessment system, “PATTERN,” to
designate a prisoner with a minimum, low, medium, or high-risk score. United States v. DeCaro, No.
28 2022 WL 4395905, at *1 n.1 (E.D. Mo. Aug. 23, 2022). Inmates who receive a minimum or low-risk
1 credits are applied toward prerelease custody or supervised release.
2 Section 3632(d)(4)(B) prohibits earning ETCs for programming completed (1) before the
3 FSA’s enactment or (2) during “official detention prior to the date the prisoner’s sentence
4 commences under section 3585(a).” Section 3585(a) provides that “a sentence of imprisonment
5 commences on the date the defendant is received in custody awaiting transportation to, or arrives
6 voluntarily to commence service of a sentence at, the official detention facility at which the
7 sentence is to be served.”
8 By regulation, 28 C.F.R. § 523.42(a) states that an eligible inmate begins earning FSA
9 time credits only after the inmate’s “term of imprisonment commences,” defined as the date the
10 inmate arrives or voluntarily surrenders at the designated BOP facility where the sentence will be
11 served. This regulatory definition differs from the statutory definition of sentence
12 commencement in § 3585(a).
13 1. Commencement of ETC Eligibility
14 Petitioner argues he became eligible to earn ETCs either as of April 5, 2021 (shortly after
15 the jury verdict, while detained pending sentencing) or as of August 27, 2021 (the date of
16 sentencing), based on the statutory definition of commencement in § 3585(a). (Doc. 1 at 6-8).
17 Respondent argues that, under § 523.42(a), Petitioner could not begin earning ETCs until
18 December 15, 2021, the date he arrived at his BOP-designated facility (FCI Mendota). (Doc. 11
19 at 4-8).
20 There is a recognized split among district courts across the country addressing the
21 “tension” between the statutory language in the FSA and the BOP’s regulations regarding the
22 “commencement” of a prisoner’s eligibility for ETCs. Many courts, including several in the
23 Ninth Circuit, have concluded that the regulation’s narrower definition of sentence
24 “commencement” is inconsistent with the FSA’s plain text because it adds an exclusion not found
25 in the statute. Others have upheld the BOP’s approach, focusing on the FSA’s risk-and-needs-
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27 score over two consecutive assessments earn an additional five days of time credits for every 30 days of
successful participation in evidence-based recidivism reduction (EBBR) programming or productive
28 activities (PA). 18 U.S.C. § 3632(d)(4)(A)(ii).
1 assessment framework and the practical timing of program assignment. As recently summarized
2 by a district court in the Ninth Circuit:
3 [m]ost of those district courts, including several courts within the
Ninth Circuit, have rejected the BOP's use of § 523.42(a) or other
4 regulatory provisions to deem a prisoner categorically ineligible to
earn FSA time credits during the period between their sentencing and
5 arrival at their designated facility. These courts have generally
viewed § 523.42(a) as creating an “additional exclusion” to
6 prisoners’ eligibility to earned time credits that is not authorized by
the FSA. At the same time, many other district courts, including
7 several courts within the Ninth Circuit, have held that the BOP may
lawfully exclude prisoners from earning time credits between their
8 sentencing and arrival at their designated facility. These courts have
tended to focus on the interplay between the FSA's provisions
9 regarding earned time credits and its mandate for the creation and use
of a risk and needs assessment system “whereby programming is
10 matched to prisoners’ needs[.]” According to these courts, prisoners
may earn FSA time credits only for successfully participating in
11 programming specifically assigned to them following an assessment
of their needs. In practice, then, prisoners are prevented from earning
12 time credits until they arrive at their designated facility, because the
BOP waits until then to evaluate their needs and make corresponding
13 program assignments.
14 Modeste, 809 F. Supp. 3d 891 at 899-900 (noting some of the courts analyzed petitioner’s claims
15 under the more deferential Chevron USA, Inc. v. Nat’l Res. Def. Counsel, Inc., 467 U.S. 837
16 (1984) framework that was later overruled by Loper Bright Enters. v. Raimondo, 603 U.S. 369,
17 394, 403, 412 (2024)) (collecting cases).
18 This Court is guided by traditional principles of statutory interpretation. The plain
19 language of the statute is the starting point for its interpretation. Cmty. for Creative Non-Violence
20 v. Reid, 490 U.S. 730, 739 (1989). Courts “must exercise their independent judgment in
21 determining whether an agency has acted within its statutory authority,” and while the agency
22 may provide guidance, the courts “may not defer to any agency interpretation of the law simply
23 because a statute is ambiguous.” Loper Bright, 603 U.S. at 412.
24 Respondent argues that § 3632(d)(4)(B) is “phrased as a prohibition” and does not create
25 an “affirmative entitlement” for a prisoner to begin earning ETCs as soon as a sentence
26 commences under § 3585(a); thus, “[c]onsidering the statutory ambiguity on that question, this
27 Court should affirm the BOP’s reasonable exercise of its delegated authority to implement the
28 FSA.” (Doc. 11 at 4-8). This argument is unavailing.
1 The relevant FSA provisions are unambiguous. See Yufenyuy v. Warden, FCI Berlin, 659
2 F. Supp. 3d 213, 218 (D.N.H. Mar. 7, 2023); Patel v. Barron, 2023 WL 6311281, at *4 (W.D.
3 Wash. Sept. 28, 2023); Huihui, 2023 WL 4086073, at *2; Puana v. Williams, 2024 WL 4932514,
4 at *4 (D. Colo. Dec. 2, 2024); Pelullo v. FCC Coleman - Low, No. 2024 WL 3771691, at *3
5 (M.D. Fla. Aug. 13, 2024); Gale v. Warden FCI Milan, 2025 WL 223870, at *4 (E.D. Mich. Jan.
6 16, 2025). Read together, § 3632(d)(4)(A) and (B) directs that a prisoner “shall” earn ETCs for
7 qualifying programming, except for programs completed before the FSA’s enactment or during
8 “official detention prior to the date the prisoner’s sentence commences under section 3585(a).”
9 Consequently, under § 3585(a), Petitioner’s sentence commenced on the date he was received in
10 custody to serve that sentence. Accordingly, the earliest date he was statutorily eligible to earn
11 ETCs is August 27, 2021, not April 5, 2021.6
12 BOP’s contention that § 523.42(a) ties the commencement of ETC eligibility to the date
13 Petitioner arrived at his BOP-designated facility conflicts with the FSA’s express statutory
14 language and effectively creates an additional exclusion to eligibility that Congress did not
15 authorize. See, e.g., Jobin, 2024 WL 1367902, at *3-4 (finding regulation conflicts with statute
16 and ordering BOP to recalculate petitioner’s ETCs from the date of sentencing); Huihui, 2023
17 WL 4086073, at *5. Arguably, “[b]y redefining when a prisoner’s sentence ‘commences’ in a
18 way that further restricts when an otherwise eligible prisoner may begin to earn FSA [ETCs], §
19 523.42(a) creates an ‘additional exclusion to general eligibility not found in the FSA’s
20 unambiguous eligibility provisions.’” Modeste, 809 F. Supp. 3d at 901 (collecting cases)
21 (quoting Pelullo v. FCC Coleman-Low, 2024 WL 3771691, at *4-5 (M.D. Fla. Aug. 13, 2024)
22 (“The FSA itself does not tie a prisoner’s eligibility to any specific BOP facility.”). The Court
23 therefore rejects Respondent’s argument that the regulation can override the statute’s definition of
24 when a sentence commences for purposes of ETC eligibility and finds Petitioner was statutorily
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6 Petitioner also asserts eligibility to earn FSA ETCs beginning April 5, 2021, apparently because it
26 followed the jury verdict and his detention pending sentencing on April 2, 2021. See Crim. Docs. 216,
224. However, the FSA expressly precludes the accrual of ETCs during “official detention prior to the date
27 the prisoner’s sentence commences under section 3585(a).” § 3632(d)(4)(B). Accordingly, and as
discussed supra, Petitioner could not begin earning ETCs until his sentence commenced on August 27,
28 2021.
1 eligible to earn ETCs on August 27, 2021.
2 2. Successful Participation in Programming
3 The Court turns to Respondent’s additional argument—that it “would be anomalous to
4 read the FSA to require BOP to give inmates time credits for participation in evidence-based
5 recidivism reduction programs before BOP has a chance to even evaluate the inmates and assign
6 them to such programs” before they arrive at their BOP-designated facility. This argument
7 mirrors reasoning adopted by several district courts. As noted above, courts acknowledge a
8 tension between the statutory language and BOP regulations concerning the “commencement of a
9 sentence,” yet nevertheless conclude that the BOP’s interpretation “of this aspect of the FSA is
10 consistent with the statutory language and intent of the [FSA], when viewed as a whole, because
11 other provisions of the [FSA] do not provide for earning of [ETCs] until a prisoner has been
12 assessed and approved for specific programming.” Williamson v. Warden, FPC Alderson, 2025
13 WL 2639884, at *6 (S.D.W.V. July 25, 2025); see also Shemtov v. Birkholz, 2025 WL 1490543,
14 at *5 (C.D. Cal. Mar. 13, 2025), report and recommendation adopted, 2025 WL 1489545 (C.D.
15 Cal. May 22, 2025) (“it is evident that the statute, read as a whole, contemplates participating in
16 programming that the BOP has individually assigned to each inmate based on that inmate’s risk
17 and needs assessment”); Jackson v. Federal Bureau of Prisons, 2026 WL 512262, at *3 (D. Or.
18 Jan. 26, 2026 (“Given that Congress delegated the BOP with the authority to develop and
19 administer this system, and left undefined what constitutes “successful participation” in
20 programming, the BOP reasonably acted within its authority in awarding FSA credits to prisoners
21 only for those periods after their initial risk and needs assessment, a function that occurs upon the
22 prisoner’s arrival at their BOP-designated facility.”).
23 The Court finds this reasoning extends beyond Petitioner’s narrow ground for relief,
24 which is limited to the alleged conflict between the statutory language and BOP’s regulatory
25 interpretation of when a term of imprisonment “commences” for purposes of eligibility to earn
26 ETCs. Whether Petitioner has “successfully participated” in programming pursuant to authority
27 delegated to the BOP after the term of imprisonment has commenced under the FSA is a separate
28 issue, to be addressed by the BOP in the first instance. 18 U.S.C. § 3632(d)(4)(A). Nothing in
1 this order precludes BOP from denying credits for periods in which Petitioner did not
2 ‘successfully participate’ in qualifying programming; the Court holds only that BOP may not
3 redefine when a sentence ‘commences’ for purposes of statutory eligibility.
4 The FSA requires the Attorney General, through the BOP, to develop a risk and needs
5 assessment system to determine appropriate programming and assign inmates accordingly, and
6 the BOP’s regulations define “successful participation” in qualifying programs. 18 U.S.C. §
7 3632(a)(3), (b). In 2022, the BOP promulgated regulations that an inmate earns ETCs only for
8 successful participation in programming that BOP has recommended based on the inmate’s
9 individualized risk and needs assessment. 28 C.F.R. § 523.41(c)(1)-(2).
10 Respondent’s motion focuses solely on the argument that Petitioner was ineligible to earn
11 ETCs prior to his arrival at FCI Mendota on December 15, 2021, and does not address whether
12 Petitioner successfully participated in any qualifying programming or productive activities
13 between August 27, 2021, and December 14, 2021. Likewise, Petitioner presents no evidence
14 demonstrating successful participation during this period; instead, he seeks an immediate credit of
15 54 days of ETCs based solely on the time elapsed.
16 Whether Petitioner engaged in and successfully completed qualifying programming after
17 his sentence commenced is a factual determination committed in the first instance to the BOP,
18 applying the statutory and regulatory framework. Because the record does not establish that
19 Petitioner successfully participated in qualifying programming from August 27, 2021, through
20 December 14, 2021, the Court denies his request for an immediate, fixed award of 54 days of
21 ETCs. However, Respondent must recalculate Petitioner’s ETCs using August 27, 2021, as the
22 date his ETC eligibility began, and make an individualized determination of any credits earned
23 during that period.
24 Accordingly, IT IS ORDERED:
25 1. Respondent’s Motion to Dismiss (Doc. 11) is DENIED.
26 2. The Petition (Doc. 1) is GRANTED IN PART and DENIED IN PART.
27 3. Respondent is directed to (a) determine whether Petitioner successfully participated in
28 qualifying programming or productive activities under 18 U.S.C. § 3632(d)(4) during
1 the period August 27, 2021 through December 14, 2021, and (b) recalculate
2 Petitioner’s ETCs accordingly, utilizing August 27, 2021 as the date on which
3 Petitioner because eligible to start earning FSA ETCs.
4 4. The Clerk of Court is directed to terminate any pending motions and close this case.
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° | Dated: _ May 11,2026 Mihaw. □□ fareh Hack
7 HELENA M. BARCH-KUCHTA
UNITED STATES MAGISTRATE JUDGE
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