1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JOSEPH MAZELLA, Case No. 1:19-cv-252-DAD-JDP (HC) 12 Petitioner, FINDINGS AND RECOMMENDATIONS TO GRANT RESPONDENT’S MOTION TO 13 v. DISMISS 14 G. PUENTES, ECF No. 12 15 Respondent. 16
17 18 Petitioner Joseph Mazella, a federal prisoner without counsel, petitioned for a writ of 19 habeas corpus under 28 U.S.C. § 2241. ECF No. 1. He seeks a court order instructing the Bureau 20 of Prisons to: (1) recalculate his good time credits in accordance with the First Step Act and (2) 21 release him to community confinement in accordance with the Second Chance Act. Id. at 2-3. 22 On March 23, 2020, respondent moved to dismiss the petition for lack of standing, ripeness, and 23 jurisdiction, and for mootness and failure to exhaust administrative remedies. ECF No. 12 at 1. 24 Petitioner has not responded to respondent’s motion to dismiss and the time for doing so has 25 passed.1 For the reasons stated below, we recommend that respondent’s motion to dismiss be 26 granted. 27 1 On February 13, 2020, mail directed to petitioner was returned to the court as undeliverable. 28 Under Local Rule 183(b), petitioner’s notice of change of address was due on April 23, 2020. 1 I. Background 2 In 2012, a jury sitting in the U.S. District Court for the Eastern District of New York 3 convicted petitioner of various counts of securities fraud, wire fraud, and mail fraud. ECF No. 12 4 at 2. Petitioner was sentenced to 120 months in prison and three years of supervised release—and 5 was ordered to pay restitution and a special assessment. Id. On January 18, 2019, petitioner 6 requested that his prison place him in either a residential re-entry center or home confinement, in 7 accordance with the First Step Act (“FSA”) and Second Chance Act (“SCA”).2 Id. On January 8 23, 2019, the prison responded, stating that the prison had yet to receive any guidance from BOP 9 on the implementation of FSA and that his placement would be addressed at his next program 10 review in July 2019. ECF No. 1 at 19. Petitioner sought no additional administrative review of 11 his request, but rather filed the instant federal habeas petition on February 22, 2019. ECF No. 12- 12 1 at 4-5. On November 15, 2019, petitioner’s GTC was recalculated in accordance with FSA, 13 providing petitioner with 540 earned and projected days of GTC. Id. at 8. On January 9, 2020, 14 the BOP transferred petitioner to a community corrections center and then to home confinement 15 on February 14, 2020. Id. at 4. Ultimately, petitioner obtained community confinement earlier 16 than his detention eligibility predictions. Id. at 8. 17 II. Discussion 18 A. Standard of Review 19 No habeas rule explicitly applies to motions to dismiss. See Hillery v. Pulley, 533 F. 20 Supp. 1189, 1194 (E.D. Cal. 1982) (“Motion practice in habeas corpus is not specifically 21 provided for in the rules but must be inferred from their structure and the Advisory Committee 22 Notes.”). Following an approach frequently taken by other courts in this district, we find that 23 Because petitioner has not updated his address with the Court and the time for doing so has 24 passed, his petition may be dismissed without prejudice for failure to prosecute. See Local Rule 183(b). 25 2 The First Step Act of 2018, which amended 18 U.S.C. § 3624(b)(1), requires BOP to permit federal prisoners to earn up to 54 days GTC per year of incarceration. See Bottinelli v. Salazar, 26 929 F.3d 1196, 1197 (9th Cir. 2019). Previously, the BOP used a calculation that only allowed 27 for 47 days of GTC per year. Id. The Second Chance of 2007 established the Elderly Offenders Pilot Program, which allows certain prisoners over the age of 60 to be released to home detention. 28 See 34 U.S.C. § 60541(g). 1 Rule 4 of the Rules Governing Section 2254 Cases provides the most appropriate analytical 2 framework for this motion to dismiss, which asserts untimeliness as a basis for dismissal. 3 See, e.g., Ram v. Sacramento Cty., No. 2:15-cv-2074-WBS-DB, 2017 U.S. Dist. Lexis 85123 at 4 *4 (E.D. Cal. June 2, 2017). Rule 4 establishes what is commonly known as a “screening” 5 procedure for habeas petitions. See O’Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990); 6 Browder v. Dir., Dep’t of Corr. of Illinois, 434 U.S. 257, 269 n.14 (1978); Fed. R. Civ. 7 P. 81(a)(4)(A). It limits our consideration to “the petition and any attached exhibits”—somewhat 8 like the limitation to the pleadings that would apply to a motion to dismiss for untimeliness 9 outside the habeas context under Federal Rule of Civil Procedure 12(b)(6) or 12(c).3 Under Rule 10 4, we evaluate whether it “plainly appears” that the petitioner is not entitled to relief—and if so 11 we dismiss the petition. 12 B. Mootness 13 The “case-or-controversy requirement of Article III, § 2, of the Constitution subsists 14 through all stages of federal judicial proceedings, trial and appellate. . . . The parties must 15 continue to have a personal stake in the outcome of the lawsuit.” Lewis v. Continental Bank 16 Corp., 494 U.S. 472, 477-78 (1990) (internal quotations omitted). Therefore, throughout civil 17 proceedings, the petitioner “must have suffered, or be threatened with, an actual injury traceable 18 to the defendant and likely to be redressed by a favorable judicial decision.” Id. at 477. “[I]f it 19 appears that [the court is] without power to grant the relief requested, then the case is moot.” 20 Picrin-Peron v. Rison, 930 F.2d 773, 775 (9th Cir. 1991). 21 Here, petitioner sought for us to order BOP to award him 54 days of GTC per year of 22 incarceration under the FSA, rather than the 47 days of GTC per year he was being awarded at the 23
24 3 See Jablon v. Dean Witter & Co., 614 F.2d 677, 682 (9th Cir. 1980) (“When a motion to dismiss is based on the running of the statute of limitations, it can be granted only if the assertions of the 25 complaint, read with the required liberality, would not permit the plaintiff to prove that the statute was tolled.”); see also Fed. R. Civ. P. 12(d) (“If, on a motion under Rule 12(b)(6) or 12(c), 26 matters outside the pleadings are presented to and not excluded by the court, the motion must be 27 treated as one for summary judgment under Rule 56.”); Farr v. United States, 990 F.2d 451, 454 (9th Cir. 1993); Hal Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542, 1550 (9th Cir. 28 1989). 1 time he filed his petition. ECF No. 1 at 2.
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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 JOSEPH MAZELLA, Case No. 1:19-cv-252-DAD-JDP (HC) 12 Petitioner, FINDINGS AND RECOMMENDATIONS TO GRANT RESPONDENT’S MOTION TO 13 v. DISMISS 14 G. PUENTES, ECF No. 12 15 Respondent. 16
17 18 Petitioner Joseph Mazella, a federal prisoner without counsel, petitioned for a writ of 19 habeas corpus under 28 U.S.C. § 2241. ECF No. 1. He seeks a court order instructing the Bureau 20 of Prisons to: (1) recalculate his good time credits in accordance with the First Step Act and (2) 21 release him to community confinement in accordance with the Second Chance Act. Id. at 2-3. 22 On March 23, 2020, respondent moved to dismiss the petition for lack of standing, ripeness, and 23 jurisdiction, and for mootness and failure to exhaust administrative remedies. ECF No. 12 at 1. 24 Petitioner has not responded to respondent’s motion to dismiss and the time for doing so has 25 passed.1 For the reasons stated below, we recommend that respondent’s motion to dismiss be 26 granted. 27 1 On February 13, 2020, mail directed to petitioner was returned to the court as undeliverable. 28 Under Local Rule 183(b), petitioner’s notice of change of address was due on April 23, 2020. 1 I. Background 2 In 2012, a jury sitting in the U.S. District Court for the Eastern District of New York 3 convicted petitioner of various counts of securities fraud, wire fraud, and mail fraud. ECF No. 12 4 at 2. Petitioner was sentenced to 120 months in prison and three years of supervised release—and 5 was ordered to pay restitution and a special assessment. Id. On January 18, 2019, petitioner 6 requested that his prison place him in either a residential re-entry center or home confinement, in 7 accordance with the First Step Act (“FSA”) and Second Chance Act (“SCA”).2 Id. On January 8 23, 2019, the prison responded, stating that the prison had yet to receive any guidance from BOP 9 on the implementation of FSA and that his placement would be addressed at his next program 10 review in July 2019. ECF No. 1 at 19. Petitioner sought no additional administrative review of 11 his request, but rather filed the instant federal habeas petition on February 22, 2019. ECF No. 12- 12 1 at 4-5. On November 15, 2019, petitioner’s GTC was recalculated in accordance with FSA, 13 providing petitioner with 540 earned and projected days of GTC. Id. at 8. On January 9, 2020, 14 the BOP transferred petitioner to a community corrections center and then to home confinement 15 on February 14, 2020. Id. at 4. Ultimately, petitioner obtained community confinement earlier 16 than his detention eligibility predictions. Id. at 8. 17 II. Discussion 18 A. Standard of Review 19 No habeas rule explicitly applies to motions to dismiss. See Hillery v. Pulley, 533 F. 20 Supp. 1189, 1194 (E.D. Cal. 1982) (“Motion practice in habeas corpus is not specifically 21 provided for in the rules but must be inferred from their structure and the Advisory Committee 22 Notes.”). Following an approach frequently taken by other courts in this district, we find that 23 Because petitioner has not updated his address with the Court and the time for doing so has 24 passed, his petition may be dismissed without prejudice for failure to prosecute. See Local Rule 183(b). 25 2 The First Step Act of 2018, which amended 18 U.S.C. § 3624(b)(1), requires BOP to permit federal prisoners to earn up to 54 days GTC per year of incarceration. See Bottinelli v. Salazar, 26 929 F.3d 1196, 1197 (9th Cir. 2019). Previously, the BOP used a calculation that only allowed 27 for 47 days of GTC per year. Id. The Second Chance of 2007 established the Elderly Offenders Pilot Program, which allows certain prisoners over the age of 60 to be released to home detention. 28 See 34 U.S.C. § 60541(g). 1 Rule 4 of the Rules Governing Section 2254 Cases provides the most appropriate analytical 2 framework for this motion to dismiss, which asserts untimeliness as a basis for dismissal. 3 See, e.g., Ram v. Sacramento Cty., No. 2:15-cv-2074-WBS-DB, 2017 U.S. Dist. Lexis 85123 at 4 *4 (E.D. Cal. June 2, 2017). Rule 4 establishes what is commonly known as a “screening” 5 procedure for habeas petitions. See O’Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990); 6 Browder v. Dir., Dep’t of Corr. of Illinois, 434 U.S. 257, 269 n.14 (1978); Fed. R. Civ. 7 P. 81(a)(4)(A). It limits our consideration to “the petition and any attached exhibits”—somewhat 8 like the limitation to the pleadings that would apply to a motion to dismiss for untimeliness 9 outside the habeas context under Federal Rule of Civil Procedure 12(b)(6) or 12(c).3 Under Rule 10 4, we evaluate whether it “plainly appears” that the petitioner is not entitled to relief—and if so 11 we dismiss the petition. 12 B. Mootness 13 The “case-or-controversy requirement of Article III, § 2, of the Constitution subsists 14 through all stages of federal judicial proceedings, trial and appellate. . . . The parties must 15 continue to have a personal stake in the outcome of the lawsuit.” Lewis v. Continental Bank 16 Corp., 494 U.S. 472, 477-78 (1990) (internal quotations omitted). Therefore, throughout civil 17 proceedings, the petitioner “must have suffered, or be threatened with, an actual injury traceable 18 to the defendant and likely to be redressed by a favorable judicial decision.” Id. at 477. “[I]f it 19 appears that [the court is] without power to grant the relief requested, then the case is moot.” 20 Picrin-Peron v. Rison, 930 F.2d 773, 775 (9th Cir. 1991). 21 Here, petitioner sought for us to order BOP to award him 54 days of GTC per year of 22 incarceration under the FSA, rather than the 47 days of GTC per year he was being awarded at the 23
24 3 See Jablon v. Dean Witter & Co., 614 F.2d 677, 682 (9th Cir. 1980) (“When a motion to dismiss is based on the running of the statute of limitations, it can be granted only if the assertions of the 25 complaint, read with the required liberality, would not permit the plaintiff to prove that the statute was tolled.”); see also Fed. R. Civ. P. 12(d) (“If, on a motion under Rule 12(b)(6) or 12(c), 26 matters outside the pleadings are presented to and not excluded by the court, the motion must be 27 treated as one for summary judgment under Rule 56.”); Farr v. United States, 990 F.2d 451, 454 (9th Cir. 1993); Hal Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542, 1550 (9th Cir. 28 1989). 1 time he filed his petition. ECF No. 1 at 2. Respondent has submitted evidence that petitioner’s 2 GTC was adjusted in accordance with the FSA, which resulted in petitioner being awarded 54 3 days of GTC per year of his sentence. ECF No. 12-1 at 8. Petitioner also sought release to 4 community confinement. ECF No. 1 at 3. Respondent has submitted evidence that petitioner was 5 released to community confinement earlier this year.4 Id. at 4. Because the relief petitioner 6 sought has already been granted to him, he has stated no injury that could be redressed by this 7 court, and his petition is rendered moot. See Lewis, 494 U.S. at 477. Therefore, it plainly 8 appears that the petitioner is not entitled to relief; we recommend dismissal.5 9 III. Certificate of Appealability 10 A petitioner seeking a writ of habeas corpus has no absolute right to appeal a district 11 court’s dismissal of a petition; he may appeal only in limited circumstances. See 28 U.S.C. 12 § 2253; Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003). Rule 11 Governing Section 2254 13 Cases requires a district court to issue or deny a certificate of appealability when entering a final 14 order adverse to a petitioner. See also Ninth Circuit Rule 22-1(a); United States v. Asrar, 116 15 F.3d 1268, 1270 (9th Cir. 1997). A certificate of appealability will not issue unless a petitioner 16 makes “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). 17 This standard requires the petitioner to show that “jurists of reason could disagree with the district 18 court’s resolution of his constitutional claims or that jurists could conclude the issues presented 19 are adequate to deserve encouragement to proceed further.” Miller-El, 537 U.S. at 327; accord 20 Slack v. McDaniel, 529 U.S. 473, 484 (2000). Here, petitioner has not made a substantial 21 showing of the denial of a constitutional right. Thus, we recommend that the Court decline to 22 issue a certificate of appealability. 23 24
25 4 Additionally, we have reviewed BOP’s inmate locator listing for the petitioner and take judicial notice of it per Rule 201 of the Federal Rules of Evidence. See Federal Bureau of Prisons Find an 26 Inmate, https://www.bop.gov/inmateloc/ (search “Find by Name” for “Joseph Mazella”). The 27 petitioner is under the supervision of the residential reentry management field office in Phoenix, Arizona. 28 5 Accordingly, we decline to analyze respondent’s remaining grounds for dismissal. wOow 4:40 MARE VET MVOC tu POO Ve OY VI
1 | IV. Findings and Recommendations 2 For the foregoing reasons, we recommend that the court grant respondent’s motion to 3 | dismiss, ECF No. 12, dismiss the case, and decline to issue a certificate of appealability. These 4 | findings and recommendations are submitted to the U.S. district judge presiding over the case 5 | under 28 U.S.C. § 636(b)(1)(B) and Local Rule 304. Within thirty days of the service of the 6 | findings and recommendations, the parties may file written objections to the findings and 7 || recommendations with the court and serve a copy on all parties. That document must be 8 | captioned “Objections to Magistrate Judge’s Findings and Recommendations.” The presiding 9 | district judge will then review the findings and recommendations under 28 U.S.C. § 636(b)(1)(C). 10 Wl IT IS SO ORDERED. \ prssanp Rae — Dated: _ May 15, 2020 13 UNIT#D STATES MAGISTRATE JUDGE 14 15 | No. 206. 16 17 18 19 20 21 22 23 24 25 26 27 28