(HC) Abramian v. Taylor

Opinion

8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10

11 ARNO ABRAMIAN, Case No. 1:24-cv-1207-SAB-HC

12 Petitioner, FINDINGS AND RECOMMENDATION RECOMMENDING RESPONDENT’S 13 v. MOTION TO DISMISS BE GRANTED AND FIRST AMENDED PETITION FOR WRIT 14 TAYLOR, et al., OF HABEAS CORPUS BE DISMISSED

15 Respondents. (ECF Nos. 4, 11)

16 ORDER DIRECTING CLERK OF COURT TO RANDOMLY ASSIGN DISTRICT 17 JUDGE

18 19 Petitioner is a federal prisoner proceeding pro se with a petition for writ of habeas corpus 20 pursuant to 28 U.S.C. § 2241. 21 I. 22 BACKGROUND 23 In the First Amended Petition (“FAP”), Petitioner requests this Court “to intervene in 24 advance” and direct the Federal Bureau of Prisons (“BOP”) to apply Petitioner’s First Step Act 25 (“FSA”) Earned Time Credits (“FTCs” or “ETCs”) when eligible. (ECF No. 4 at 1.1) On January 26 17, 2025, Respondent filed a motion to dismiss the petition on the following grounds: (1) lack of 27 constitutional standing and failure to state a claim because Petitioner is the subject of a final 1 order of removal; and (2) failure to exhaust administrative remedies. (ECF No. 11.) On April 22, 2 2025, the Court ordered Respondent to file a copy of Petitioner’s purported final order of 3 removal. (ECF No. 12.) On May 12, 2025, the final order of removal was filed under seal. (ECF 4 No. 19.) On May 19, 2025, Petitioner filed an addendum to the petition. (ECF No. 20.) 5 II. 6 DISCUSSION 7 A. First Step Act and Earned Time Credits 8 “On December 21, 2018, the First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194, 9 was enacted. The Act implemented a number of prison and sentencing reforms.” Bottinelli v. 10 Salazar, 929 F.3d 1196, 1197 (9th Cir. 2019). With respect to earned time credit, the Ninth 11 Circuit has described the First Step Act’s amendments as follows: 12 [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.2 [132 13 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 14 speaking, review each prisoner’s recidivism risk level, award earned time credit as an incentive for participation in recidivism reduction programming, and 15 “determine when a prisoner is ready to transfer into prerelease custody or supervised release in accordance with section 3624.” § 101(a), 132 Stat. at 5196– 16 97. Section 3624(g) details the criteria for when a prisoner becomes eligible, considering earned time credit, for transfer to prerelease custody or supervised 17 release. § 102(b), 132 Stat. at 5210–13. 18 Bottinelli, 929 F.3d at 1197–98 (footnote in original). 19 Section 3632(d)(4)(A) provides that “[a] prisoner, except for an ineligible prisoner under 20 subparagraph (D), who successfully completes evidence-based recidivism reduction 21 programming or productive activities, shall earn time credits[.]” 18 U.S.C. § 3632(d)(4)(A). 22 “Time credits earned under this paragraph by prisoners who successfully participate in 23 recidivism reduction programs or productive activities shall be applied toward time in prerelease 24 custody or supervised release. The Director of the Bureau of Prisons shall transfer eligible 25 prisoners, as determined under section 3624(g), into prerelease custody or supervised release.” 26 18 U.S.C. § 3632(d)(4)(C). 27 2 In contrast to good time credit, earned time credit is awarded for “successfully complet[ing] evidence-based 1 However, subparagraph (E) provides: 2 (E) Deportable prisoners ineligible to apply time credits.--

3 (i) In general.--A prisoner is ineligible to apply time credits under subparagraph (C) if the prisoner is the subject of a final order of removal 4 under any provision of the immigration laws (as such term is defined in section 101(a)(17) of the Immigration and Nationality Act (8 U.S.C. 5 1101(a)(17))).

6 (ii) Proceedings.--The Attorney General, in consultation with the Secretary of Homeland Security, shall ensure that any alien described in section 212 or 237 7 of the Immigration and Nationality Act (8 U.S.C. 1182, 1227) who seeks to earn time credits are subject to proceedings described in section 238(a) of that 8 Act (8 U.S.C. 1228(a)) at a date as early as practicable during the prisoner’s incarceration. 9 10 18 U.S.C. § 3632(d)(4)(E). 11 B. Exhaustion 12 “As a prudential matter, courts require that habeas petitioners exhaust all available 13 judicial and administrative remedies before seeking relief under § 2241.” Ward v. Chavez, 678 14 F.3d 1042, 1045 (9th Cir. 2012) (citations omitted). However, because it is not a jurisdictional 15 prerequisite, exhaustion can be waived if pursuing administrative remedies would be futile. Id. 16 Respondent contends that the “FSA’s own exhaustion requirement under 18 U.S.C. 17 § 3582(c)(l)(A) is a claim-processing rule that does not permit a district court to excuse a 18 petitioner’s failure to exhaust administrative remedies if the failure to do so is properly raised by 19 the government,” citing to United States v. Keller, 2 F.4th 1278, 1282 (9th Cir 2021). (ECF No. 20 11 at 5.) However, 18 U.S.C. § 3582(c)(l)(A) governs compassionate release and modifications 21 of an imposed term of imprisonment, which are not at issue in the instant petition. While the 22 Court appreciates that in the “context of the prudential exhaustion of administrative remedies, the 23 issue of whether ‘relaxation of the requirement would encourage the deliberate bypass of the 24 administrative scheme’ is a key consideration,” Laing v. Ashcroft, 370 F.3d 994, 1000 (9th Cir. 25 2004) (quoting Montes v. Thornburgh, 919 F.2d 531, 537 (9th Cir. 1990)), the Court finds that 26 the exhaustion requirement should be excused in this case due to futility because Respondent has 27 determined that Petitioner is “jurisdictionally and statutorily barred from FSA ETC sentence- 1 C. Whether Petitioner is the Subject of a Final Order of Removal 2 A prisoner is ineligible to apply FTCs “if the prisoner is the subject of a final order of 3 removal under any provision of the immigration laws (as such term is defined in section 4 101(a)(17) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(17))).” 18 U.S.C. 5 § 3632(d)(4)(E)(i). Here, Respondent argues that Petitioner is ineligible to apply FTCs because 6 he is subject to a final order of removal. (ECF No. 11 at 3.) Respondent has filed a copy of a 7 February 18, 2005 order by an immigration judge ordering Petitioner removed to Iran and 8 denying deferral or withholding of removal. (ECF No. 19 at 5.) 9 Petitioner appears to argue that because Iran does not have diplomatic relations or a 10 repatriation agreement with the United States, and thus, there is no reasonable likelihood that 11 Iran will permit Petitioner’s return in the reasonably foreseeable future, Petitioner is “‘always’ in 12 removal proceeding[s] and never final.” (ECF No. 4 at 8.) “[A] ‘final order of removal’ is a final 13 order ‘concluding that the alien is deportable or ordering deportation.’” Nasrallah v. Barr, 590 14 U.S. 573, 579 (2020) (quoting 8 U.S.C. § 1101(a)(47)(A)). Here, the record reflects that a final 15 order of removal exists, and Petitioner is the subject of said order.3 Whether the February 18, 16 2005 removal order can be effectuated is a distinct question from whether Petitioner “is the 17 subject of a final order of removal under any provision of the immigration laws” under the 18 statute. 18 U.S.C. § 3632(d)(4)(E)(i). Accordingly, the Court finds that Petitioner is “the subject 19 of a final order of removal under any provision of the immigration laws” for purposes of 18 20 U.S.C. § 3632(d)(4)(E)(i), and thus, is ineligible to apply First Step Act time credits. As 21 Petitioner cannot obtain the relief he seeks in the petition, Respondent’s motion to dismiss 22 should be granted. 23 III. 24 RECOMMENDATION 25 Based on the foregoing, the Court HEREBY RECOMMENDS that: 26 1. Respondent’s motion to dismiss (ECF No. 11) be GRANTED; and 27 3 Petitioner asserts that he was granted a deferral of removal. (ECF No. 4 at 7.) However, the February 18, 2005 1 2. The first amended petition for writ of habeas corpus (ECF No. 4) be DISMISSED. 2 Further, the Clerk of Court is DIRECTED to randomly assign this action to a District 3 | Judge. 4 This Findings and Recommendation is submitted to the assigned United States District 5 | Court Judge, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of the Local 6 | Rules of Practice for the United States District Court, Eastern District of California. Within 7 | THIRTY (30) days after service of the Findings and Recommendation, any party may file 8 | written objections with the Court, limited to fifteen (15) pages in length, including any 9 | exhibits. Such a document should be captioned “Objections to Magistrate Judge’s Findings and 10 | Recommendation.” Replies to the objections shall be served and filed within fourteen (14) days 11 | after service of the objections. The assigned United States District Court Judge will then review 12 | the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 636(b)(1)(C). The parties are advised that 13 | failure to file objections within the specified time may waive the right to appeal the District 14 | Court’s order. Wilkerson _v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter _v. 15 | Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 16 7 IT IS SO ORDERED. FA. ee 1g | Dated: _ June 10, 2025 STANLEY A. BOONE 19 United States Magistrate Judge 20 21 22 23 24 25 26 27 28