Hassan v. Gutierrez

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Steven Hadley Hassan, No. CV-23-00510-TUC-JCH

10 Petitioner, ORDER ADOPTING R&R AND DISMISSING PETITION 11 v.

12 M. Gutierrez,

13 Respondent. 14 15 Pro se incarcerated Petitioner, Steven Hadley Hassan, filed a "Petition Under 16 20 U.S.C. § 2241 for a Writ of Habeas Corpus by a Person in Federal Custody" (the 17 "Petition"). Doc. 1. Respondent M. Gutierrez, Complex Warden for the United States 18 Penitentiary in Tucson ("USP-Tucson"), filed a Response (Doc. 10), and Petitioner filed a 19 Reply (Doc. 11). On August 7, 2024, Magistrate Judge Lynette C. Kimmins issued a Report 20 and Recommendation ("R&R") in which she recommends this Court deny the Petition. 21 Doc. 12. Petitioner filed an Objection to the R&R.1 Doc. 13. For the following reasons, the 22 Court will overrule Petitioner's objections, adopt Judge Kimmins's R&R in full, and 23 dismiss the Petition. 24 I. Factual Background 25 The R&R provided a succinct factual background that Petitioner has not objected 26 to. Doc. 12 at 1–2. As such, the Court will adopt the R&R's factual findings in full. Relevant 27 here, Petitioner is serving a 480-month sentence for Production of Child Pornography 28 1 Respondent did not file a Reply to Petitioner’s Objection. 1 Transported into the United States under 18 U.S.C. § 2251(c). Doc. 10 at 3–4. Petitioner's 2 current projected release date is July 13, 2052, after which he will be on supervised release 3 for life. Id. Petitioner was housed at USP-Tucson at the time he filed the Petition. Id. at 4. 4 Petitioner is currently serving his sentence at FCI-Marianna in Florida. Id. In the Petition, 5 Petitioner alleges the First Step Act ("FSA") violates (1) the Due Process Clause of the 6 Fifth Amendment because inmates have a protected liberty interest in FSA time credits 7 ("FTCs") and (2) the Equal Protection Clause of the Fifth Amendment because inmates 8 who have been convicted of certain crimes are precluded from earning FTCs to shorten 9 their sentence. See generally Doc. 1. 10 II. The First Step Act 11 The FSA was enacted December 21, 2018, and aims, in part, to address sentencing 12 reform. It instructs the Attorney General to develop a risk and needs assessment system 13 (the "System") to assign prisoners to recidivism reduction programs. See 18 U.S.C. 14 § 3632(a). As part of the System, Congress outlined a series of incentives and rewards to 15 encourage prisoners to engage with the recidivism reduction programs. § 3632(d). These 16 incentives include increased phone and visitation privileges and transfers to preferred 17 institutions, among others. § 3632(d)(4). 18 Particularly relevant here is the provision allowing prisoners to earn FTCs toward 19 prerelease custody or supervised release. Id. The pertinent statutory language is as follows: 20 A prisoner, except for an ineligible prisoner under subparagraph (D), who successfully completes evidence- 21 based recidivism reduction programming or productive activities, shall earn time credits as follows: 22 (i) A prisoner shall earn 10 days of time credits for every 23 30 days of successful participation in evidence-based recidivism reduction programming or productive 24 activities. 25 (ii) A prisoner determined by the Bureau of Prisons to be at a minimum or low risk for recidivating, who, over 26 2 consecutive assessments, has not increased their risk of recidivism, shall earn an additional 5 days of time 27 credits for every 30 days of successful participation in evidence-based recidivism reduction programming or 28 productive activities. 1 § 3632(d)(4)(A) (emphasis added). Subparagraph D provides that "[a] prisoner is ineligible 2 to receive time credits under this paragraph if the prisoner is serving a sentence for" any 3 one of 68 enumerated offenses. § 3632(d)(4)(D). This list of disqualifying offenses 4 includes convictions under 18 U.S.C. § 2151 "relating to the sexual exploitation of 5 children." § 3632(d)(4)(D)(xxxix). 6 III. Report and Recommendation Standard of Review 7 This Court "may accept, reject, or modify, in whole or in part, the findings or 8 recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1). If an objection is 9 made, the Court "must review the magistrate judge's findings and recommendations de 10 novo." United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc). The 11 Court is obligated to review only the specific portions of the report, proposed findings, or 12 recommendations objected to. See § 636(b)(1). If, following review, "the district court is 13 satisfied with the magistrate judge's findings and recommendations it may in its discretion 14 treat those findings and recommendations as its own." Morris v. Shin, No. CV 20-322, 15 2023 WL 6248830, at *7 n. 5 (D. Ariz. Sept. 26, 2023) (quoting Goffman v. Gross, 59 F.3d 16 668, 671 (7th Cir. 1995)). 17 IV. Analysis 18 The Petition was filed under 28 U.S.C. § 2241 for a Writ of Habeas Corpus by a 19 Person in Federal Custody. Section 2241 allows an incarcerated individual to petition the 20 Court to determine whether their detention is lawful. Petitioner alleges his sentence is 21 unlawful because the provision of the FSA that disqualifies persons convicted under any 22 of the 68 enumerated offenses, including 18 U.S.C. § 2151, is unconstitutional. See Doc. 1. 23 A. Respondent 24 USP-Tucson Complex Warden Gutierrez is the named Respondent. While Gutierrez 25 was the correct Respondent at the time of filing because Petitioner was housed at USP- 26 Tucson, he is now housed at FCI-Marianna. Doc. 10 at 4. Thus, the acting warden of FCI- 27 Marianna, B. Wingfield, should be substituted as Respondent. See Rumsfeld v. Padilla, 542 28 U.S. 426, 434 (2004) ("The federal habeas statute straightforwardly provides that the 1 proper respondent to a habeas petition is 'the person who has custody over [the petitioner].'" 2 (alteration in original) (quoting 28 U.S.C. § 2242)). 3 However, because Petitioner filed the Petition while he was housed at USP-Tucson, 4 it is still properly before this Court. "[J]urisdiction attaches on the initial filing for habeas 5 corpus relief, and it is not destroyed by a transfer of the petitioner and the accompanying 6 custodial change." Francis v. Rison, 894 F.2d 353, 354 (9th Cir. 1990) (quotation omitted). 7 B. Exhaustion of Administrative Remedies 8 Typically, courts require a habeas petitioner to exhaust his administrative remedies 9 before filing for relief under 28 U.S.C. § 2241. Martinez v. Roberts, 804 F.2d 570, 571 (9th 10 Cir. 1986). The purpose of this requirement is to protect administrative agency authority 11 and promote efficiency. Woodford v. Ngo, 548 U.S. 81, 89 (2006). But there are exceptions 12 to this requirement. In particular, a prisoner is not required to exhaust his administrative 13 remedies before filing a petition under 28 U.S.C. § 2241 when doing so would be futile. 14 Laing v. Ashcroft, 370 F.3d 994, 1000–01 (9th Cir. 2004). 15 Respondent argues that to have exhausted his administrative remedies, Petitioner 16 must have "gone through submissions at all applicable levels of review in the BOP's 17 Administrative Remedy Program," and because Petitioner has not done this, the Court 18 should dismiss the petition. See Doc. 10 at 5–7. Petitioner does not contend he exhausted 19 these remedies. Doc. 12 at 2. Instead, Petitioner argues that because it is not within the 20 BOP's authority to amend the First Step Act, and only the judiciary has the authority to 21 interpret the constitutionality of statutes, he has no available administrative remedies and 22 as such, exhausting them would be futile. See Doc. 11 at 1–2. Respondent urges the Court 23 to find the futility exception does not apply, as "the Supreme Court has already rejected 24 futility as a means to circumvent the administrative exhaustion requirement." Doc. 10 at 6 25 (citing Booth v. Churner, 532 U.S. 731, 741 (2001)). But see Brown v. Valoff, 422 F.3d 26 926, 935 (9th Cir. 2005) ("Booth made quite clear that the statutory language does not 27 require exhaustion when no pertinent relief can be obtained through the internal process."). 28 The R&R declined to reach these arguments, "finding it most expeditious to resolve 1 [Petitioner's] claims on the merits." Doc. 13 at 3. This Court agrees. Because the exhaustion 2 requirement was judicially created and not a statutory requirement, the Court may "excuse 3 the faulty exhaustion and reach the merits." Brown v. Rison, 895 F.2d 533, 535 (9th Cir. 4 1990); see also Garrido v. Warden, No. 22-cv-00991, 2023 WL 2587894, at *13 (E.D. Cal. 5 Mar. 20, 2023). As such, the Court will exercise its discretion and analyze the Petition on 6 its merits. 7 C. First Objection – Equal Protection 8 Petitioner first argues against the R&R's conclusion on the basis that it overlooked 9 the possibility of an equal protection violation under rational basis scrutiny. Doc. 13 at 2–3. 10 Petitioner acknowledges inmates are not a suspect or quasi-suspect class entitled to 11 heightened scrutiny. Id. Instead, Petitioner argues that "all federal inmates who are 12 incarcerated because of a criminal conviction" are similarly situated, and excluding only 13 those who have committed certain crimes does not pass even the presumptively 14 constitutional rational basis standard. Id. at 3–4. Despite Petitioner's claim to the contrary, 15 the R&R addressed this standard and concluded there is a clear rational basis for preventing 16 those convicted of certain crimes from earning FTCs. Doc. 12 at 4. 17 As an initial matter, Petitioner's assumption that all federal inmates are similarly 18 situated is inherently flawed. "An equal protection claim will not lie by 'conflating all 19 persons not injured into a preferred class receiving better treatment' than the plaintiff." 20 Thorton v. City of St. Helens, 425 F.3d 1158, 1167 (9th Cir. 2005) (quoting Joyce v. 21 Mavromatis, 783 F.2d 56, 57 (6th Cir. 1986)). Here, Petitioner asserts he has an equal 22 protection claim because some inmates have the opportunity to earn credits while some do 23 not. He ignores, however, that all crimes are not created equal. Included within the list of 24 68 offenses that make an inmate ineligible to earn FTCs are "some of the most serious 25 crimes under federal law." United States v. Powell, No. 11-cr-205, 2023 WL 5489030 at 26 *11 (E.D. Va. Aug. 24, 2023). The list includes, for example, offenses relating to biological 27 and chemical weapons (18 U.S.C. §§ 175 et seq., §§ 229 et seq.), genocide (18 U.S.C. §§ 28 1111 et seq.), and terrorist attacks (18 U.S.C. §§ 1992). More pertinently, the list prohibits 1 the earning of FTCs by those inmates who are perhaps most similarly situated to Petitioner: 2 those convicted of sex crimes. See 18 U.S.C. §§ 3632(d)(4)(D)(xxxvii)-(xliii). The simple 3 fact that Petitioner may be housed in a federal detention center with individuals who have 4 not committed one of these excluded crimes does not automatically make them similarly 5 situated for the purposes of an equal protection analysis, and "[e]vidence of different 6 treatment of unlike groups does not support an equal protection claim." Thorton, 425 F.3d 7 at 1168. 8 Even if the Court assumes all federal inmates are similarly situated for the purpose 9 of an equal protection analysis, it is well established that there is a rational basis for treating 10 certain crimes as being more serious than others. Because the Petitioner is not a member 11 of a suspect class and his claim does not involve a fundamental right, the difference in FTC 12 eligibility need only be supported by rational basis. Armour v. City of Indianapolis, 566 13 U.S. 673, 679 (2012). As the R&R reasons, restricting certain offenders from eligibility to 14 earn FTCs has a number of legitimate rational bases, including "the particular obscenity of 15 the offense, the need to protect society, and the need to deter future criminal conduct, 16 among others." Doc. 12 at 4 (quoting Powell, 2023 WL 5489030, at *12 (denying a 17 defendant's claim that the exclusion of certain offenders from the ability to earn FTCs 18 violated the Equal Protection Clause)); see also Fett v. Baldwin, No. 18-CV-3306, 2019 19 WL 1440249, at *3–4 (C.D. Ill. Apr. 1, 2019) (denying a defendant's equal protection claim 20 because the crimes that prevented prisoners from being eligible to earn full sentence credits 21 "may rationally be perceived as more violent, dangerous, or serious . . . thus justifying the 22 reduction in credit"); Tyson v. Baldwin, No. 19-cv-648, 2020 WL 469663, at *3 (S.D. Ill. 23 Jan. 29, 2020) ("There is a rational basis for treating [certain] crimes differently than other 24 crimes . . . because these crimes could be considered more violent, serious, or dangerous 25 than other crimes."). Differentiating between classes of offenders is thus highly 26 distinguishable from the "irrational classes" of which Petitioner gives examples in his 27 Objection. Doc. 13 at 4–5. Because there is a clearly established rational basis for 28 preventing certain offenders from earning FTCs towards the reduction of their sentences, 1 Petitioner's equal protection claim fails. 2 D. Second Objection – Due Process 3 Petitioner next objects to the R&R's finding that because Petitioner has not lost any 4 FTCs he has already earned and there is no liberty interest in the opportunity to earn FTCs, 5 he has no due process claim. See Doc. 12 at 4–5. Instead, Petitioner equates FTCs to other 6 congressionally-created "good time credits," which are "given to all federal inmates for 7 good behavior, and can only be taken away by due process in a disciplinary hearing." Doc. 8 13 at 6. He claims that for both these types of credits, the government has created a right 9 to earn them and accordingly, has also created an expectation of the opportunity to earn 10 early release. Id. at 6–7. To Petitioner, it is this expectation that creates a liberty interest 11 that cannot be taken without due process. Id. at 7. 12 As a threshold matter, Petitioner is mistaken that the good time credits outlined in 13 18 U.S.C. § 3624(b) (which the Court assumes are the ones to which he is referring) are 14 available to all prisoners. See, e.g., § 3624(b)(1) (excluding prisoners serving a life 15 sentence). But, more importantly, these two types of credits—good time credits and 16 FTCs—cannot be equated. This is because the statutory text that creates the right for 17 prisoners to earn FTCs also explicitly excludes those who are incarcerated for the offenses 18 outlined in 18 U.S.C. § 3632(d)(4)(D): "A prisoner, except for an ineligible prisoner under 19 subparagraph (D), who successfully completes evidence-based recidivism reduction 20 programming or productive activities, shall earn time credits as follows . . . ." (emphasis 21 added). To quote Respondent, "[t]here is no vagueness in the statutory text of the FSA." 22 Doc. 10 at 7. Section 3632 could not have given Petitioner an "expectation" of the 23 possibility of release because it explicitly excludes him from the ability to earn FTCs. It is 24 expressly different from the statutes in the cases Petitioner cites that created a right to or 25 expectation of the opportunity to earn early release. See Wolff v. McDonnell, 418 U.S. 539, 26 556–57 (1974) (holding that where a state statute "created the right to good time and itself 27 recogniz[ed] that its deprivation is a sanction authorized for major misconduct," prisoners 28 were entitled to due process before that right was abrogated); Greenholtz v. Inmates of Neb. 1 Penal & Corr. Complex, 442 U.S. 1, 7–12 (1979) (holding that while the mere possibility 2 or hope of obtaining parole is not protected by due process, statutes can give rise to due 3 process protections by use of language mandating certain procedures). It follows that if the 4 liberty interest is tied to the creation of an expectation of early release, then no liberty 5 interest has been created, and Petitioner's due process rights have not been violated. See 6 Greenholtz, 442 U.S. at 7 ("There is no constitutional or inherent right of a convicted 7 person to be conditionally released before the expiration of a valid sentence."). 8 E. Third Objection – Ex Post Facto 9 In his Objection, Petitioner raises for the first time the argument that the deprivation 10 of the right to earn FTCs constitutes an ex post facto penalty. Doc. 13 at 9–10. While the 11 Court has the discretion to consider arguments raised for the first time in an objection to 12 an R&R, it is not required to do so. See Brown v. Roe, 279 F.3d 742, 744 (9th Cir. 2002). 13 As such, the Court declines to address Petitioner's arguments at length. Petitioner's claim, 14 however, would fail even if properly raised because an ex post facto penalty is "the 15 application of any new punitive measure to a crime already consummated." Lindsey v. 16 Wash., 301 U.S. 397, 401 (1937); see also Weaver v. Graham, 450 U.S. 24, 31 (1981) 17 ("The critical question is whether the law changes the legal consequences of acts completed 18 before its effective date."). Here, Petitioner's sentence would be the same as it is now if 19 § 3632 had never been enacted. It does not impose any additional punishment and thus is 20 not an unconstitutional ex post facto penalty. 21 V. Order 22 Accordingly, 23 IT IS ORDERED that B. Wingfield, Acting Warden for FCI-Marianna, should be 24 substituted as Respondent. 25 IT IS FURTHER ORDERED ADOPTING IN FULL the Report and 26 Recommendation (Doc. 12). 27 IT IS FURTHER ORDERED DENYING the Petition (Doc. 1). The Clerk of the 28 Court shall enter judgment and close this case. 1 Dated this 9th day of October, 2024. 2 3 4 ™~ H □□□ 5 / / John C. Hinderaker ‘ (United States District Judge 7 8 9 10 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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