1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 GRACIANO MARQUEZ-HUAZO, No. 2:21-cv-1540 KJN P 12 Petitioner, 13 v. ORDER 14 WARDEN, FCI-HERLONG, 15 Respondent. 16 17 Petitioner, a federal prisoner, proceeds pro se with an amended petition for writ of habeas 18 corpus under 28 U.S.C. § 2241. Previously, on March 25, 2022, the undersigned recommended 19 that respondent’s motion to dismiss be granted. (ECF No. 17.) Petitioner filed objections; 20 respondent did not file a reply. On April 26, 2022, during the pendency of the findings and 21 recommendations, this action was reassigned to the undersigned upon consent of the parties. 22 (ECF No. 22.) 23 The undersigned reviewed petitioner’s objections. For the reasons set forth in the findings 24 and recommendations, petitioner’s objections are overruled. Contrary to petitioner’s arguments, 25 the record reflects that petitioner had an unobstructed procedural shot at presenting the instant 26 claims, and therefore fails to satisfy the escape hatch criteria of § 2255. (ECF No. 17 at 6-7.) 27 //// 28 //// 1 The findings and recommendations are incorporated herein by reference. (ECF No. 17.) 2 Respondent’s motion to dismiss is granted for the reasons set forth therein, and the Clerk of the 3 Court shall enter judgment accordingly. 4 Motion to Strike 5 Subsequently, petitioner filed a motion to strike the respondent’s motion to dismiss. 6 Petitioner argues, without citing any legal authorities in support, that because the United States 7 Attorney’s Office is not the Warden of FCI Herlong, such office cannot appear on the warden’s 8 behalf. Petitioner is mistaken. The U.S. Attorney’s Office employs licensed attorneys who may 9 represent the warden or the Bureau of Prisons. Moreover, the U.S. Attorney’s Office properly 10 appeared on behalf of the warden by filing the motion to dismiss. Petitioner’s motion to strike is 11 denied. 12 Motion to Amend 13 Petitioner also moves to amend the instant petition to pursue claims under The First Step 14 Act. He argues that he erroneously failed to include such argument in his original or amended 15 petitions but intended to raise it as “evidentiary rebuttal.” (ECF No. 19 at 2.) As noted in the 16 findings and recommendations, in his opposition to the motion to dismiss petitioner first argued 17 that he should be resentenced under The First Step Act. (ECF No. 17 at 7 n.5.) 18 Governing Standards 19 Rule 15 of the Federal Rules of Civil Procedure applies to requests to amend habeas 20 corpus petitions. See Mayle v. Felix, 545 U.S. 644, 655 (2005); In re Morris, 363 F.3d 891, 893 21 (9th Cir. 2004). Under the circumstances presented here, Rule 15(a) allows petitioner to amend 22 his pleading only with the Court’s leave, which “should [be] freely give[n] . . . when justice so 23 requires.” Fed. R. Civ. P. 15(a). “[T]his policy is to be applied with extreme liberality.” 24 Morongo Band of Mission Indians v. Rose, 893 F.2d 1074, 1079 (9th Cir. 1990); see also 25 Waldrip v. Hall, 548 F.3d 729, 732 (9th Cir. 2008). “However, liberality in granting leave to 26 amend is subject to several limitations. Those limitations include undue prejudice to the opposing 27 //// 28 //// 1 party, bad faith by the movant, futility, and undue delay.” Cafasso, U.S. ex rel. v. Gen. Dynamics 2 C4 Sys., Inc., 637 F.3d 1047, 1058 (9th Cir. 2011) (citations and internal quotation marks 3 omitted); see also Waldrip, 548 F.3d at 732. 4 The First Step Act 5 The First Step Act was signed into law on December 21, 2018. Pub. L. No. 115-391, 132 6 Stat. 5194 (2018). The relevant portions of the First Step Act allow eligible prisoners to earn time 7 credits against their sentences for successfully completing certain “recidivism reduction 8 programming” or “productive activities.” 18 U.S.C. § 3632(d)(4). The Attorney General was 9 allowed 210 days after the First Step Act was enacted to develop and publish the Risk 10 Assessment Needs system, which the Bureau of Prisons (“BOP”) must use as a guide to 11 implement the programs. 18 U.S.C. § 3632(a). The Attorney General published the Risks and 12 Needs Assessment on July 19, 2019. The BOP then had 180 days, or until January 15, 2020, to 13 implement the system, complete inmate risk assessments, and then begin to assign prisoners to 14 appropriate evidence-based recidivism reduction programs. 18 U.S.C. § 3621(h). 15 Thereafter BOP was given an additional two years, or until January 15, 2022, to phase in 16 programming and provide “evidenced based recidivism reduction programs and productive 17 activities for all prisoners.” 18 U.S.C. § 3621(h)(2)(A-B). Moreover, during this “phase-in” 18 period, the BOP was empowered to exercise its own discretion as to how and when to expand 19 programs and activities, as well as offer the system’s incentives and rewards as of the date of 20 enactment of the First Step Act: 21 Beginning on the date of enactment of this subsection, the Bureau of Prisons may begin to expand any evidence-based recidivism 22 reduction programs and productive activities that exist at a prison as of such date, and may offer to prisoners who successfully participate 23 in such programs and activities the incentives and rewards described in subchapter D. 24 25 § 3621(h)(4) (emphasis added). 26 Ripeness 27 The ripeness doctrine is “drawn both from Article III limitations on judicial power and 28 from prudential reasons for refusing to exercise jurisdiction.” Nat’l Park Hosp. Ass’n v. Dep’t of 1 the Interior, 538 U.S. 803, 808 (2003) (quoting Reno v. Cath. Soc. Servs., Inc., 509 U.S. 43, 57 2 n.18 (1993)). It “is to prevent the courts, through premature adjudication, from entangling 3 themselves in abstract disagreements” when those disagreements are premised on “contingent 4 future events that may not occur as anticipated, or indeed may not occur at all.” Thomas v. Union 5 Carbide Agric. Prods. Co., 473 U.S. 568, 580-81 (1985) (citations omitted); Wolfson v. Brammer, 6 616 F.3d 1045, 1057 (9th Cir. 2010); see also Simmonds v. INS, 326 F.3d 351, 357 (2d Cir. 7 2003) (evaluating ripeness in the context of a habeas petition, stating “[p]rudential ripeness is ...
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 GRACIANO MARQUEZ-HUAZO, No. 2:21-cv-1540 KJN P 12 Petitioner, 13 v. ORDER 14 WARDEN, FCI-HERLONG, 15 Respondent. 16 17 Petitioner, a federal prisoner, proceeds pro se with an amended petition for writ of habeas 18 corpus under 28 U.S.C. § 2241. Previously, on March 25, 2022, the undersigned recommended 19 that respondent’s motion to dismiss be granted. (ECF No. 17.) Petitioner filed objections; 20 respondent did not file a reply. On April 26, 2022, during the pendency of the findings and 21 recommendations, this action was reassigned to the undersigned upon consent of the parties. 22 (ECF No. 22.) 23 The undersigned reviewed petitioner’s objections. For the reasons set forth in the findings 24 and recommendations, petitioner’s objections are overruled. Contrary to petitioner’s arguments, 25 the record reflects that petitioner had an unobstructed procedural shot at presenting the instant 26 claims, and therefore fails to satisfy the escape hatch criteria of § 2255. (ECF No. 17 at 6-7.) 27 //// 28 //// 1 The findings and recommendations are incorporated herein by reference. (ECF No. 17.) 2 Respondent’s motion to dismiss is granted for the reasons set forth therein, and the Clerk of the 3 Court shall enter judgment accordingly. 4 Motion to Strike 5 Subsequently, petitioner filed a motion to strike the respondent’s motion to dismiss. 6 Petitioner argues, without citing any legal authorities in support, that because the United States 7 Attorney’s Office is not the Warden of FCI Herlong, such office cannot appear on the warden’s 8 behalf. Petitioner is mistaken. The U.S. Attorney’s Office employs licensed attorneys who may 9 represent the warden or the Bureau of Prisons. Moreover, the U.S. Attorney’s Office properly 10 appeared on behalf of the warden by filing the motion to dismiss. Petitioner’s motion to strike is 11 denied. 12 Motion to Amend 13 Petitioner also moves to amend the instant petition to pursue claims under The First Step 14 Act. He argues that he erroneously failed to include such argument in his original or amended 15 petitions but intended to raise it as “evidentiary rebuttal.” (ECF No. 19 at 2.) As noted in the 16 findings and recommendations, in his opposition to the motion to dismiss petitioner first argued 17 that he should be resentenced under The First Step Act. (ECF No. 17 at 7 n.5.) 18 Governing Standards 19 Rule 15 of the Federal Rules of Civil Procedure applies to requests to amend habeas 20 corpus petitions. See Mayle v. Felix, 545 U.S. 644, 655 (2005); In re Morris, 363 F.3d 891, 893 21 (9th Cir. 2004). Under the circumstances presented here, Rule 15(a) allows petitioner to amend 22 his pleading only with the Court’s leave, which “should [be] freely give[n] . . . when justice so 23 requires.” Fed. R. Civ. P. 15(a). “[T]his policy is to be applied with extreme liberality.” 24 Morongo Band of Mission Indians v. Rose, 893 F.2d 1074, 1079 (9th Cir. 1990); see also 25 Waldrip v. Hall, 548 F.3d 729, 732 (9th Cir. 2008). “However, liberality in granting leave to 26 amend is subject to several limitations. Those limitations include undue prejudice to the opposing 27 //// 28 //// 1 party, bad faith by the movant, futility, and undue delay.” Cafasso, U.S. ex rel. v. Gen. Dynamics 2 C4 Sys., Inc., 637 F.3d 1047, 1058 (9th Cir. 2011) (citations and internal quotation marks 3 omitted); see also Waldrip, 548 F.3d at 732. 4 The First Step Act 5 The First Step Act was signed into law on December 21, 2018. Pub. L. No. 115-391, 132 6 Stat. 5194 (2018). The relevant portions of the First Step Act allow eligible prisoners to earn time 7 credits against their sentences for successfully completing certain “recidivism reduction 8 programming” or “productive activities.” 18 U.S.C. § 3632(d)(4). The Attorney General was 9 allowed 210 days after the First Step Act was enacted to develop and publish the Risk 10 Assessment Needs system, which the Bureau of Prisons (“BOP”) must use as a guide to 11 implement the programs. 18 U.S.C. § 3632(a). The Attorney General published the Risks and 12 Needs Assessment on July 19, 2019. The BOP then had 180 days, or until January 15, 2020, to 13 implement the system, complete inmate risk assessments, and then begin to assign prisoners to 14 appropriate evidence-based recidivism reduction programs. 18 U.S.C. § 3621(h). 15 Thereafter BOP was given an additional two years, or until January 15, 2022, to phase in 16 programming and provide “evidenced based recidivism reduction programs and productive 17 activities for all prisoners.” 18 U.S.C. § 3621(h)(2)(A-B). Moreover, during this “phase-in” 18 period, the BOP was empowered to exercise its own discretion as to how and when to expand 19 programs and activities, as well as offer the system’s incentives and rewards as of the date of 20 enactment of the First Step Act: 21 Beginning on the date of enactment of this subsection, the Bureau of Prisons may begin to expand any evidence-based recidivism 22 reduction programs and productive activities that exist at a prison as of such date, and may offer to prisoners who successfully participate 23 in such programs and activities the incentives and rewards described in subchapter D. 24 25 § 3621(h)(4) (emphasis added). 26 Ripeness 27 The ripeness doctrine is “drawn both from Article III limitations on judicial power and 28 from prudential reasons for refusing to exercise jurisdiction.” Nat’l Park Hosp. Ass’n v. Dep’t of 1 the Interior, 538 U.S. 803, 808 (2003) (quoting Reno v. Cath. Soc. Servs., Inc., 509 U.S. 43, 57 2 n.18 (1993)). It “is to prevent the courts, through premature adjudication, from entangling 3 themselves in abstract disagreements” when those disagreements are premised on “contingent 4 future events that may not occur as anticipated, or indeed may not occur at all.” Thomas v. Union 5 Carbide Agric. Prods. Co., 473 U.S. 568, 580-81 (1985) (citations omitted); Wolfson v. Brammer, 6 616 F.3d 1045, 1057 (9th Cir. 2010); see also Simmonds v. INS, 326 F.3d 351, 357 (2d Cir. 7 2003) (evaluating ripeness in the context of a habeas petition, stating “[p]rudential ripeness is ... a 8 tool that courts may use to enhance the accuracy of their decisions and to avoid becoming 9 embroiled in adjudications that may later turn out to be unnecessary or may require premature 10 examination ”). 11 The majority of courts that have previously considered claims regarding the BOP’s 12 alleged failure to award earned time credits under the First Step Act have concluded that these 13 claims are not ripe until January 15, 2022, when the BOP must “phase-in” the evidence-based 14 recidivism programs and productive activities for all prisoners. Khouanmany v. Gutierrez, 2021 15 WL 4394591, at *4 (C.D. Cal. Aug. 2, 2021) (“The majority of courts to have considered claims 16 regarding the BOP’s failure to award earned time credits under the First Step Act have concluded 17 that such claims are not ripe at this time because the BOP has until January 15, 2022, to “phase- 18 in” the evidence-based recidivism reduction programs and productive activities for all 19 prisoners.”) (citing Novotny v. Yankton FPC, Warden, 2021 WL 3089287, at *1 (D. S.D. July 21, 20 2021) (inmates do not have standing to seek an order requiring the BOP to apply earned time 21 credits toward prerelease custody before January 15, 2022); Diaz v. Warden, FCI-Ray Brook, 22 2021 WL 3032694, at *2-3 (N.D. N.Y. July 19, 2021) (challenge to BOP’s calculation of earned 23 time credit under the First Step Act was not ripe for review); Hand v. Barr, 2021 WL 392445, at 24 *5 (E.D. Cal. Feb. 4, 2021) (“because the Act does not require BOP to provide evidence-based 25 recidivism reduction programs and productive activities for all prisoners until January 2022, the 26 Court finds that petitioner’s claims regarding earned time credits and evidence-based recidivism 27 reduction programs are not ripe”), findings and recommendation adopted by 2021 WL 1853295, 28 at *2 (E.D. Cal. May 10, 2021) (given that the regulations governing the First Step Act time 1 credits have yet to be codified, the court agreed that the petitioner’s claims regarding First Step 2 Act time credits were not ripe); Cohen v. United States, 2021 WL 1549917, at *3 (S.D. N.Y. Apr. 3 20, 2021) (claims challenging calculation of earned time credits under the First Step Act was not 4 ripe); Kennedy-Robey v. FCI Pekin, 2021 WL 797516, at *3-4 (C.D. Ill. Mar. 2, 2021) (“The use 5 of the word ‘may’ indicates that, while it is permissible for the BOP to award time credits under 6 the statute at any time after the date of enactment, the BOP is not required to do so”; thus, the 7 petitioner did not have standing to demand that the BOP apply her time credits as she 8 calculated)); Fair v. Thompson, 2022 WL 183429 (E.D. Cal. Jan. 20, 2022) (challenges to certain 9 BOP policies regarding the First Step Act and the BOP’s application of the Act dismissed as 10 unripe). 11 The undersigned agrees with the reasoning of the courts cited above and finds that at the 12 time petitioner filed this action on August 27, 2021, or amended the petition on October 25, 2021, 13 his claims were not ripe. Also, because the BOP was not required to complete the phase-in until 14 January 15, 2022, it does not appear that petitioner could have exhausted a claim challenging the 15 application of time credits until after such date. 16 Section 2241 does not contain an exhaustion requirement, and thus, exhaustion is not a 17 jurisdictional prerequisite. Brown v. Rison, 895 F.2d 533, 535 (9th Cir. 1990), overruled on other 18 grounds by Reno v. Koray, 515 U.S. 50, 54-55 (1995). However, for prudential reasons, federal 19 courts require Section 2241 petitioners to exhaust their administrative remedies prior to seeking 20 habeas relief. Ward v. Chavez, 678 F.3d 1042, 1045 (9th Cir. 2012); see also Singh v. 21 Napolitano, 649 F.3d 899, 902 (9th Cir. 2011) (“The prudential exhaustion doctrine is well 22 established.”) Requiring a petitioner to exhaust his administrative remedies aids “judicial review 23 by allowing the appropriate development of a factual record in an expert forum,” conserves “the 24 court’s time because of the possibility that the relief applied for may be granted at the 25 administrative level,” and allows “the administrative agency an opportunity to correct errors 26 occurring in the course of administrative proceedings.” Ruviwat v. Smith, 701 F.2d 844, 845 (9th 27 Cir. 1983) (per curiam). Dismissal is appropriate when a federal prisoner has not exhausted the 28 administrative remedies made available by the BOP. Martinez v. Roberts, 804 F.2d 570, 571 (9th 1 |} Cir. 1986) (per curiam). 2 Courts have discretion to waive the exhaustion requirement when administrative remedies 3 || are inadequate or their exercise would be futile, or irreparable injury would result without 4 || immediate judicial intervention. See, e.g., Ward, 678 F.3d at 1045; Laing v. Ashcroft, 370 F.3d 5 | 994, 1000 (9th Cir. 2004); see also Acevedo-Carranza v. Ashcroft, 371 F.3d 539, 542 n.3 (9th 6 || Cir. 2004). Although “courts have discretion to waive the exhaustion requirement when 7 || prudentially required, this discretion is not unfettered.” Laing, 370 F.3d at 998; see also Murillo 8 | v. Mathews, 588 F.2d 759, 762, n.8 (9th Cir. 1978) (“Although the ‘(a)pplication of the rule 9 || requiring exhaustion is not jurisdictional, but calls for the sound exercise of judicial discretion,’ it 10 | is not lightly to be disregarded.”) (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, 370 F.3d at 1000 (citation omitted). 13 In his motion, petitioner does not address the issue of exhaustion and acknowledges that 14 | he omitted such claim from his original and amended petitions, suggesting that he likely had not 15 || exhausted any claims under The First Step Act prior to bringing this action. Thus, the court 16 || exercises its discretion and declines to waive the exhaustion requirement under these 17 || circumstances. Petitioner’s motion to amend is denied. Petitioner may raise his putative claims 18 || under The First Step Act in a new action once he has exhausted administrative remedies available 19 | by the BOP. 20 | VI. Conclusion 21 Accordingly, IT IS HEREBY ORDERED that: 22 1. Respondent’s motion to dismiss (ECF No. 11) is granted; 23 2. Petitioner’s motion to strike (ECF No. 20) is denied; 24 3. Petitioner’s motion to amend (ECF No. 19) is denied; and 25 4. The § 2241 petition is dismissed without prejudice, and the Clerk of the Court shall 26 || enter judgment. 27 || Dated: April 27, 2022 /marq1540.mtd.2241.cons Foci) Aharon ' KENDALL J. NE TINTITED STATES MA CTETE ATE TINncEe