(HC) Meza v. Warden

• Court: District Court, E.D. California
• Decided: April 1, 2024
• Docket: 1:23-cv-01736
• Status: Unknown

Opinion

8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10

11 MARIANO MEZA, Case No. 1:23-cv-01736-EPG-HC

12 Petitioner, ORDER DISCHARGING ORDER TO SHOW CAUSE 13 v. (ECF No. 5) 14 WARDEN, 15 Respondent.

16 17 Petitioner Mariano Meza is a federal prisoner proceeding pro se with a petition for writ of 18 habeas corpus pursuant to 28 U.S.C. § 2241. The Court ordered Petitioner to show cause why the 19 petition should not be dismissed for failure to exhaust administrative remedies, and Petitioner has 20 filed a response. (ECF Nos. 5, 7.) 21 In the petition, Petitioner challenges a Federal Bureau of Prisons’ (“BOP”) policy 22 (Program Statement 5410.01), alleging that it excludes eligible inmates, including Petitioner, 23 from applying First Step Act (“FSA”) time credits (“FTCs” or “ETCs”) on the basis of having an 24 immigration detainer with a box stating “deportation or removal from the United States has been 25 ordered” checked off. (ECF No. 1 at 2, 18. 1) Program Statement 5410.01 used to provide that 26 “[w]hile inmates with unresolved pending charges and/or detainers may earn FTCs, if otherwise 27 eligible, they will be unable to apply them to prerelease custody or release to supervision unless 1 the charges and/or detainers are resolved. An inmate with an unresolved immigration status will 2 be treated as if he/she has unresolved pending charges with regard to the application of FTCs.” 3 Bureau of Prisons, Program Statement 5410.01, First Step Act of 2018 – Time Credits: 4 Procedures for Implementation of 18 U.S.C. § 3632(d)(4), at 13 (Nov. 18, 2022), 5 https://www.bop.gov/policy/progstat/5410.01_cn2.pdf (last visited Apr. 1, 2024). On February 6, 6 2023, the BOP issued Change Notice 5410.01 CN-1, which struck the language quoted above. 7 Bureau of Prisons, Change Notice No. 541001 CN-1 (Feb. 6, 2023).2 “As a result of Change 8 Notice 5410.01, federal prisoners subject to immigration detainers are no longer automatically 9 prohibited from applying their earned time credits.” Alatorre v. Derr, No. CV 22-00516 JMS- 10 WRP, 2023 WL 2599546, at *5 (D. Haw. Mar. 22, 2023). 11 “As a prudential matter, courts require that habeas petitioners exhaust all available 12 judicial and administrative remedies before seeking relief under § 2241.” Ward v. Chavez, 678 13 F.3d 1042, 1045 (9th Cir. 2012) (citations omitted). However, because it is not a jurisdictional 14 prerequisite, exhaustion can be waived if pursuing administrative remedies would be futile. Id. 15 (citations omitted). Petitioner states that he did not pursue administrative remedies because 16 “[a]ny appeal to BOP . . . would be futile” as “[t]his is a legal question of law.” (ECF No. 1 at 2.) 17 A district judge in this Court has found that pursuing administrative remedies in similar 18 circumstances would not be futile because “[t]his dispute does not concern the BOP’s 19 interpretation of a statute. Rather, it is a factual dispute. If in fact the BOP has erroneously 20 determined that Petitioner is subject to a final order of removal rather than an immigration 21 detainer, an administrative appeal to correct the factual dispute should prove fruitful.” Orozco- 22 Orozco v. Warden, FCI Mendota, No. 1:23-cv-00908-JLT-SKO, 2023 WL 4493730, at *1 (E.D. 23 Cal. July 12, 2023). 24 In his response to the order to show cause, Petitioner asserts that “F.C.I. Mendota and 25 other BOP officials have informed Petitioner that FSA time credits will not be applied due to the 26 2 Pursuant to Federal Rule of Evidence 201, the Court takes judicial notice of the BOP program statement 27 and change notice. Fed. R. Evid. 201. See United States v. Thornton, 511 F.3d 1221, 1229 n.5 (9th Cir. 2008) (taking judicial notice of BOP program statement); United States v. Raygoza-Garcia, 902 F.3d 994, 1 | immigration detainer. There is nothing indicating the BOP will alter this position.” (ECF No. 7 at 2 | 1-2.) Petitioner also cites to Saxon v. Warden, No. 1:23-cv-01110-SKO, where the Court 3 | ordered the respondent to file a copy of the final order of removal because it could not verify 4 | whether the petitioner is subject to a final order of removal otherwise, it was subsequently 5 | determined that the petitioner was not subject to a final order of removal, the appropriate FSA 6 | time credits were applied, and the petitioner was released. (Id. at 2-3.) The Court construes 7 | Petitioner’s argument to be that an immigration detainer indicating that the prisoner is subject to 8 | a final order of removal is sufficient to deny BOP administrative relief without a requirement 9 | that the purported final order of removal itself be reviewed, and therefore, an administrative 10 | appeal to correct the factual dispute would not be fruitful. See Bernhardt v. Los Angeles County, 11 | 339 F.3d 920, 925 (9th Cir. 2003) (“Courts have a duty to construe pro se pleadings 12 | liberally[.]”). 13 Accordingly, IT IS HEREBY ORDERED that the order to show cause (ECF No. 5) is 14 | DISCHARGED. 15 16 IT IS SO ORDERED. Dated: _ April 1, 2024 [spe heey 18 UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28