(HC) Muniz v. Thompson

• Court: District Court, E.D. California
• Decided: March 23, 2023
• Docket: 2:21-cv-01820
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JOSE LUIS MUNIZ, No. 2:21-cv-1820 TLN AC P 12 Petitioner, 13 v. FINDINGS AND RECOMMENDATIONS 14 PAUL THOMPSON, 15 Respondent. 16 17 Petitioner, a federal prisoner proceeding pro se, has filed an application for a writ of 18 habeas corpus pursuant to 28 U.S.C. § 2241. ECF No. 1. The matter was referred to a United 19 States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 Before the court is respondent’s motion to dismiss the petition. ECF No. 8. Prior to 21 respondent moving to dismiss the petition, petition filed his opposition. ECF No. 7. After 22 respondent’s motion was filed, petitioner was given an opportunity to supplement his opposition 23 (ECF No. 9), but he did not submit any further response. For the reasons stated below, the 24 undersigned will recommend that respondent’s motion be granted. 25 I. RELEVANT BACKGROUND 26 Petitioner is an inmate who is currently housed at the Federal Correctional Institution – 27 Herlong (“FCI-Herlong”). In November 2018, in the Eastern District of Washington, petitioner 28 pled guilty to conspiracy to distribute 500 grams or more of a mixture or substance containing a 1 detectable amount of methamphetamine and 5 kilograms cocaine in violation of 21 U.S.C. 2 §§ 841(a)(1), (b)(1)(A)(ii) and (viii) and 846. He was sentenced to serve 135 months in federal 3 custody, followed by a five-year term of supervised release. He was also ordered to pay a 4 $100.00 special assessment and $7,500.00 fine.1 ECF No. 8 at 2-3 (motion to dismiss); ECF No. 5 7-2 at 11-17 (judgment in criminal case). 6 The Bureau of Prisons (“BOP”) records indicate that petitioner’s projected release date is 7 February 9, 2029, assuming he receives good conduct credit.2 ECF No. 8 at 3; ECF No. 8-2 at 3. 8 Respondent states that under the First Step Act (“FSA”), if petitioner has met certain criteria for 9 eligibility, he may apply any credits he has earned, including FSA time credits, towards 10 discretionary pre-release custody. ECF No. 8 at 3. That custody will be determined via a BOP- 11 specific inmate progress and suitability assessment for limited final-months-of-custody placement 12 in a transition location. It is contingent upon availability and resources. Id. 13 II. THE PETITION 14 In a fill-in-the-blank freeform petition, petitioner, an inmate at FCI-Herlong, asks the 15 court to provide declaratory relief that prospectively establishes the earned credit that is to be 16 applied to his future early release date. ECF No. 1 at 1. The petition primarily consists of a 17 narrative identifying the allegedly improper ways that the BOP is applying the FSA which, in 18 turn, slows his ability to accrue earned time credits under the statute that can then be applied 19 towards his earlier release from prison. See generally id. They include respondent purportedly 20 backtracking on representations that earned time credit accrued for early release due to 21 participation in EBRR programing and productive activities, as well as respondent being selective 22 regarding the start dates of credit accrual for certain productive activities. ECF No. 1 at 2. 23 Petitioner argues that this inconsistent application, as well as the inconsistent, 24 discretionary distinctions the BOP has made regarding programs, programming and productive 25

26 1 The 2241 petition filed by petitioner is not on the court’s form. See ECF No. 1. As a result, the offense, plea and sentencing facts are taken solely from respondent’s motion to dismiss and its 27 attachments, the latter of which, are readily verifiable. Petitioner does not dispute the offense, plea and sentencing facts in his reply. See generally ECF No. 7. 28 2 This date is as of February 2022, when the motion to dismiss was filed. 1 activities that are eligible for credit under the FSA, violate the Equal Protection Clause. ECF No. 2 1 at 3. In sum, petitioner argues that the manner in which the BOP has chosen to interpret and 3 implement the crediting system under the FSA intentionally undermines the law. Id. at 2-4. 4 Petitioner also claims that he is entitled to have any credits he has earned immediately applied 5 towards his early release, instead of waiting until the January 2022 phase-in date.3 Id. at 4-5. 6 Petitioner asks the court to issue declaratory relief in the form of an order that: (1) directs 7 the BOP to immediately credit all work and educational programming that he earned after the 8 enactment of the FSA towards his early release; (2) voids BOP directives, statements and 9 handbooks that directly contradict legislative intent; and (3) calculates his days of credit and 10 orders the BOP to apply them towards his early release. ECF No. 1 at 5-6. He contends that 11 because the petition simply asks the court to make a legal determination on a narrow dispute of 12 statutory construction, pursuant to Coleman v. U.S. Parole Commission, 644 F.3d 159, 162 (3rd 13 Cir. 2016), and Fraley v. United States Bureau of Prisons, 1 F.3d 924 (9th Cir. 1991), he was not 14 required to exhaust administrative remedies. ECF No. 1 at 1. 15 III. FIRST STEP ACT 16 A. Historical Origins 17 The First Step Act of 20184 was created and implemented by Congress to further criminal 18 justice reform. It is “a remedial statute intended to correct earlier statutes’ significant disparities 19 in the treatment of cocaine base (also known as crack cocaine) as compared to powder cocaine.” 20 United States v. Wirsing, 943 F.3d 175, 176 (4th Cir. 2019); United States v. White, 984 F.3d 76 21 89 (D.C. Cir. 2020) (quoting Wirsing). Offenses covered by it are federal criminal statutes that 22 were committed before August 3, 2010, the penalties for which were modified by specific 23 sections of the Fair Sentencing Act of 2010.5 It was enacted on December 21, 2018. 24 B. Statutory Implementation and Execution 25 Under the FSA, the Attorney General, in consultation with the Federal Bureau of Prisons 26 3 January 2022 was the deadline to phase in programming and provide EBRR programs and 27 productive activities for prisoners. See 18 U.S.C. § 3621(h)(2)(A). 4 First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194 (2018). 28 5 Fair Sentencing Act of 2010, Pub. L. No. 111-220, § 404(a), 124 Stat. 2372 (2010). 1 and other federal entities, was tasked, in relevant part, to review existing prison risk and needs 2 assessment systems and to develop recommendations regarding evidence-based recidivism 3 reduction (“EBRR”) programs and productive activities (“PAs”) that were the most effective at 4 reducing recidivism. See 18 U.S.C. § 3631(a)-(b). Thereafter, within 210 days of the FSA’s 5 enactment,6 the Attorney General was to develop and publicly release a risk and needs assessment 6 system that would be used to determine the risk of recidivism for each prisoner, as well as the 7 type and amount of EBRR programming that was appropriate for each prisoner, and then assign 8 prisoners to programming accordingly. See 18 U.S.C. § 3632(a)(1), (3). The assessment system 9 developed was also tasked with determining when to provide incentives and rewards for 10 successful participation in EBRR programs and PAs, as well as with determining when to transfer 11 prisoners into prerelease custody or supervised release. See id. at (a)(6)-(7). 12 Within 180 days of the Attorney General’s completion of the assessment system,7 the 13 Director of the Bureau of Prisons was to implement and complete the initial intake risk and needs 14 assessment for each prisoner; begin to assign appropriate EBRR programs and PAs based on 15 them and expand the EBRR programs and PAs it offered. See 18 U.S.C. § 3621(h)(1)(A)-(B). 16 Thereafter, the BOP was to provide EBRR programs and PAs for all prisoners within two years of 17 the BOP completing the risk and needs assessment for each prisoner.8 Id. at (h)(2)(A). This was 18 called the “phase-in” period. During this two-year period, which culminated on January 15, 19 2022, priority for EBRR programs and PAs was given based on a prisoner’s proximity to a 20 release date.9 Id. at (h)(3). 21 C. Application of Time Credits 22 Under the FSA, when a prisoner successfully completes an EBRR program or a PA, he 23 6 The court takes judicial notice of the fact that 210 days from December 21, 2018, was July 19, 24 2019. 7 The court also takes judicial notice of the fact that 180 days from July 19, 2019 – the date the 25 Attorney General was to complete the risk and needs assessment system – was January 15, 2020. 26 8 The COVID-19 pandemic caused the BOP to limit the EBRR programs offered. See generally Keegan v. Derr, No. 22-00089 LEK-RT, 2023 WL 2403941, at *1 (D. Haw. March 8, 2023). 27 9 In addition, priority to EBRR programs was to be given to prisoners with “medium” and “high” risk recidivism assessments, while access to PAs were given to prisoners with “minimum” and 28 “low” risk assessments. 18 U.S.C. § 3621(h)(6). 1 earns 10 days for every 30 days of successful participation. 18 U.S.C. § 3632(d)(4)(A)(i). In 2 addition, if the BOP has determined a prisoner is at a “minimum” or “low” risk of recidivating, 3 and he has not increased his risk of recidivism over two consecutive assessments,10 he will earn 4 an additional 5 days of time credit for every 30 days he has participated in EBRR programming or 5 PAs. Id. at (d)(4)(A)(ii). Time credit, however, cannot be earned for an EBRR program that a 6 prisoner successfully completed before the enactment of the FSA or during official detention 7 prior to the date a prisoner’s sentence began. Id. at (d)(4)(B)(i)-(ii). In addition, the time credit 8 awarded for EBRR programming and PAs is to be applied only to prerelease custody or 9 supervised release. Id. at (d)(4)(C). 10 IV. MOTION TO DISMISS 11 A. Respondent’s Motion 12 Respondent argues that dismissal is warranted on several grounds: (1) lack of standing and 13 ripeness under Article III; (2) lack of jurisdiction under Section 2241; and (3) failure to exhaust 14 administrative remedies prior to filing the instant petition. ECF No. 8 at 1-5. 15 With respect to Article III, respondent argues that the petition must be dismissed because 16 at the time the petition was filed, neither petitioner’s custodial status nor his custody term had 17 been impacted by any BOP action. ECF No. 8 at 3-4. Respondent contends, that based on 18 petitioner’s February 2029 projected release date, he suffers from no prejudice from the lack of a 19 premature credit calculation.11 Id. 20 Respondent also urges dismissal as a matter of law and for failure to state a Section 2241 21 claim, consistent with Federal Rule of Civil Procedure 12(b)(1), (6) and 28 U.S.C. §§ 2243 and 22 2255(e). ECF No. 8 at 3-5. Respondent argues that petitioner is not currently eligible for FSA 23 credit discretionary sentence end-phase programming and that even if he were to become eligible, 24 the application of any theoretical decision regarding petitioner’s eligibility for sentence-end-phase

25 10 Risk assessments and level adjustments for prisoners participating in EBRR programming and 26 PAs are to occur no less often than annually. 18 U.S.C. § 3632(d)(5). 11 In this case, the BOP has not yet calculated petitioner’s FSA time credits because his release 27 date is too far in the future, and the agency has chosen to calculate FSA credits on a rolling basis with those with an anticipated release date within forty-five days given first priority. See ECF 28 No. 8-2 at 8. 1 programming would be entirely discretionary on the BOP’s part. Id. at 4-5. Because the petition 2 is not ripe for review, respondent argues, the court should dismiss it for lack of subject matter 3 jurisdiction. ECF No. 8 at 5-6. 4 Finally, respondent argues that the petition should be dismissed because petitioner failed 5 to exhaust the BOP’s administrative remedies prior to filing the petition. ECF No. 8 at 4-5. 6 Respondent rejects petitioner’s claims that he is excused from the requirement because doing so 7 would be futile and he would be irreparably harmed, arguing that these arguments are unavailable 8 prior to BOP’s application of FSA credits. Id. at 5. 9 B. Petitioner’s Reply 10 Petitioner’s reply offers no clear response to respondent’s standing argument.12 See 11 generally ECF No. 7. Instead, the reply primarily accuses respondent’s counsel of withholding or 12 misrepresenting information and repeats arguments made in the petition. Id. 13 Petitioner does address respondent’s exhaustion argument, by reiterating that exhaustion is 14 excused by Coleman, supra, and Fraley, supra. Id. at 2, 5. He also reiterates his request for 15 declaratory relief in the form of applying the FSA to his sentence. Id. at 6. 16 V. DISCUSSION 17 A. Article III Standing 18 1. Applicable Law 19 Article III of the Constitution limits the “judicial power” of the United States to the 20 resolution of “cases” and “controversies.” Valley Forge Christian Coll. v. Americans United for 21 Separation of Church & State, Inc., 454 U.S. 465, 471 (1982). “Failure to satisfy Article III’s 22 case-or-controversy requirement renders a habeas petition moot.” Kittel v. Thomas, 620 F.3d 23 949, 951 (9th Cir. 2010) (citation and internal quotation marks omitted). The judicial power 24 defined by Article III is not an unconditioned authority to determine the constitutionality of 25 legislative or executive acts. Valley Forge, 454 U.S. at 471. 26

27 12 The reply, which was filed prior to respondent’s motion to dismiss, appears to be another boilerplate document in which petitioner has simply filled in blank spots with information that is 28 unique to him. See generally ECF No. 7. 1 Constitutional standing is the threshold question in every case because it determines a 2 court’s power to entertain a matter. Warth v. Seldin, 422 U.S. 490, 498 (1975); Larson v. Correct 3 Craft, Inc., 569 F.3d 1319, 1326 (Fed Cir. 2009) (citing Warth). It asks the question whether a 4 litigant has made out a “case or controversy” within the meaning of Article III. Warth, 422 U.S. 5 at 498. A federal court’s jurisdiction can be invoked only when a litigant has suffered some 6 threatened or actual injury resulting from the putatively illegal action. Warth, 422 U.S. at 499; 7 Polinsky v. MCA Inc., 680 F.2d 1286, 1288-89 (9th Cir. 1982) (citing Warth). Standing is 8 determined at the time a suit is filed. Clapper v. Amnesty Int’l USA, 568 U.S. 398, 426 (2013) 9 (citing Davis v. Federal Election Comm’n, 554 U.S. 724, 734 (2008)). 10 Three elements are needed to establish standing under Article III: (1) an “injury in fact,” 11 i.e., an invasion of a legally protected interest which is “concrete and particularized” and “actual 12 or imminent, not conjectural or hypothetical; (2) a causal connection between the injury and the 13 conduct complained of, i.e., fairly traceable to the challenged action of the offender and not the 14 result of the independent action of some third party not before the court, and (3) a likely, not 15 speculative possibility that the injury will be redressed by a favorable decision. See Lujan v. 16 Defenders of Wildlife, 504 U.S. 555, 560-61 (1992); Monsanto Co. v. Geertson Seed Farms, 561 17 U.S. 139, 149 (2010) (citing Horne v. Flores, 557 U.S. 433, 445 (2009)). “The party invoking 18 federal jurisdiction bears the burden of establishing these elements . . . with the manner and 19 degree of evidence required at the successive stages of the litigation.” Lujan, 504 U.S. at 561 20 (citation omitted). 21 Threatened future harm can, in some instances, confer standing. However, in such cases, 22 the injury must be “certainly impending” to constitute injury-in-fact; allegations of possible future 23 injury are not sufficient. Whitmore v. Arkansas, 495 U.S. 149, 158 (1990); Babbitt v. United 24 Farm Workers Nat’l Union, 442 U.S. 289, 298 (1979) (stating challenging litigant must 25 demonstrate realistic danger of sustaining direct injury as result of statute’s operation or 26 enforcement). One need not wait for the consummation of the threatened injury in order to obtain 27 preventive relief. “Certainly impending” injury is enough. Babbitt, 442 U.S. at 298. 28 //// 1 2. Analysis 2 The question of standing under Article III is the threshold consideration in any case. In 3 this case, it is dispositive. 4 Petitioner filed the instant action in this court on September 25, 2021.13 ECF No. 1 at 6 5 (signature date on petition). At that time, the BOP was still in the “phase-in” part of FSA 6 implementation, and the BOP had until January 15, 2022, to complete that process. Accordingly, 7 petitioner’s argument that the BOP was improperly applying the FSA (ECF No. 1 at 2-4) was 8 premature. 9 Because time remained under statute in September 2021 for the BOP to complete the FSA 10 phase-in via providing EBRR programs and PAs for the assessed prisoners, petitioner had no 11 injury-in-fact when the instant petition was filed. In other words, he had no legally protected 12 interest that was concrete and particularized and actual or imminent. See Lujan, 504 U.S. at 560. 13 The fact that the petition is largely comprised of boilerplate, and is replete with speculative 14 statements like petitioner’s release date “may be past or [be] in the near future” and “[t]o wait . . . 15 until January 15, 2022 [to apply time credits] . . . would be incredibly unfair” (ECF No. 1 at 1, 4), 16 further supports the court’s finding that petitioner had experienced no harm unique to himself in 17 the BOP’s implementation of the FSA at the time he filed the petition. These facts also support 18 the court’s finding that when the petition was filed, there was no “certainly impending” injury 19 that rose to the level of injury-in-fact. 20 Without any injury, there can be no standing under Article III and neither the causal 21 connection nor the favorable redress prongs must be addressed. The fact that the BOP has 22 presumably since completed its implementation of the FSA and/or may be improperly applying it 23 now does not affect the analysis. As stated earlier, “[t]he existence of federal jurisdiction 24 ordinarily depends on the facts as they exist when the complaint is filed.” See Newman-Green, 25

26 13 The signing date of a pleading is the earliest possible filing date pursuant to the mailbox rule. See Roberts v. Marshall, 627 F.3d 768, 769 n.1 (9th Cir. 2010) (stating constructive filing date for 27 prisoner giving pleading to prison authorities is date pleading is signed); Jenkins v. Johnson, 330 F.3d 1146, 1149 n.2 (9th Cir. 2003), overruled on other grounds by Pace v. DiGuglielmo, 544 28 U.S. 408 (2005). 1 Inc. v. Alfonzo-Larrain, 490 U.S. 826, 830 (1989) (italics added); Lujan, 504 U.S. at 570 n.4 2 (quoting Newman-Green, Inc.); Righthaven LLC v. Hoehn, 716 F.3d 1166, 1171 (9th Cir. 2013) 3 (citing Lujan, 504 U.S. at 569 n.4); see also Protectmarriage.com-Yes on 8 v. Bowen, 752 F.3d 4 827, 834 (9th Cir. 2014) (citation omitted) (citing Spencer v. Kemna, 523 U.S. 1, 7 (1998) and 5 affirming live controversy at time of filing requirement and indicating controversy must exist at 6 all stages of proceedings). 7 Lack of Article III standing at the time of filing cannot be cured after the fact. See 8 Consumer Fin. Prot. Bureau v. Gordon, 819 F.3d 1179, 1203 (9th Cir. 2016) (“[W]here a plaintiff 9 files a complaint before its asserted injury occurred, it lacks standing even if a sufficient injury- 10 in-fact occurs while the case is pending.”); Schreiber Foods, Inc. v. Beatrice Cheese, Inc., 402 11 F.3d 1198, 1203 (Fed. Cir. 2005). Because ripeness is a constitutional prerequisite for 12 jurisdiction, and it is a question of timing, if a claim involves contingent future events that may 13 not occur as anticipated, it is not yet ripe for judicial review. See United States v. Streich, 560 14 F.3d 926, 931 (9th Cir. 2009) (citation omitted). For these reasons, petitioner had no standing 15 when he filed this action, and it must therefore be dismissed. See Keene Corp. v. United States, 16 508 U.S. 200, 207 (1993) “[A] federal court may not entertain an action over which it has no 17 jurisdiction.” Hernandez v. Campbell, 204 F.3d 861, 865 (9th Cir. 2000) (per curiam) (some 18 citations omitted) (citing Insurance Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee, 19 456 U.S. 694, 701(1982)). 20 B. Subject-Matter Jurisdiction 21 1. Applicable Law 22 Subject-matter jurisdiction refers to a court’s power to consider a case. It can never be 23 waived or forfeited. Adkison v. C.I.R., 592 F.3d 1050, 1054-55 (9th Cir. 2010). Bean v. 24 Matteucci, 986 F.3d 1128, 1132 n.1 (9th Cir. 2021) (citation omitted). A district court has 25 subject-matter jurisdiction to consider a habeas petition that alleges a violation of federal law 26 under federal question jurisdiction. Bean, 986 F.3d at 132 (federal court jurisdiction is conferred 27 by the allegation of an unconstitutional restraint). With Section 2241 petitions, a prisoner may 28 establish such jurisdiction by showing he is in custody in violation of the laws or treaties of the 1 United States. 28 U.S.C.§ 2241(c)(3); Huante v. Craven, 500 F.3d 1004, 1005-1006 (9th Cir. 2 1974) (stating custody requirement). 3 2. Analysis 4 Petitioner ultimately asks the court to order respondent and/or the BOP to comply with the 5 FSA immediately by calculating and applying specific EBRR and PA credits to his sentence. 6 ECF No. 1 at 3-6. However, the FSA guidelines are clear: The BOP was not required to have 7 developed and implemented the FSA until January 15, 2022. See generally 18 U.S.C. 8 § 3621(h)(2)(A). As with standing, subject-matter jurisdiction requires a basic showing of harm, 9 here, facts demonstrating a violation of federal rights. Because the BOP was not required to 10 complete its FSA rollout before January 15, 2022, petitioner was unable to claim a violation of 11 federal right prior to that date. Therefore, at the time petitioner filed the instant petition in 12 September 2021, no actual harm could have existed. Accordingly, this court had no subject- 13 matter jurisdiction over the petition then, and it should have been dismissed at the time it was 14 filed. See Grupo Dataflux v. Atlas Global Group, L.P., 541 U.S. 567, 570-71 (2004) (stating 15 court jurisdiction depends on state of things at time action is brought). 16 C. Exhaustion 17 Even if standing and subject-matter jurisdiction had been proper when petitioner filed the 18 instant petition, the BOP should have been given an initial opportunity to address petitioner’s 19 grievances regarding FSA implementation and the awarding (or withholding) of credits. Under 20 the FSA, proper administrative exhaustion requires either: (1) the full exhaustion of all 21 administrative rights to appeal a failure of the BOP to bring a motion on the petitioner’s behalf, or 22 (2) the lapse of thirty days from receipt of such a request by the warden of the petitioner’s facility 23 – whichever is earlier. See 18 U.S.C. § 3582(c)(1)(A). It is only after one of these events occur 24 that the court is authorized to reduce a petitioner’s term of imprisonment. 25 It is true that administrative exhaustion is not statutorily required by Section 2241 itself. 26 See Laing v. Ashcroft, 370 F.3d 994, 997 (9th Cir. 2004) (citing McKart v. United States, 395 27 U.S. 185, 194 (1969)). However, as a prudential matter, the courts require that administrative 28 remedies in a habeas petition be exhausted, because it is generally more efficient for the 1 administrative process to go forward without interruption than to permit parties to seek aid from 2 the courts at various intermediate stages. McKart, 395 U.S. at 194; Myers v. Bethlehem 3 Shipbuilding Corp, 303 U.S. 41, 50-51 (1938) (“No one is entitled to judicial relief for a supposed 4 or threatened injury until the prescribed administrative remedy has been exhausted.”). 5 Furthermore, the FSA’s own exhaustion requirement under 18 U.S.C. § 3582(c)(1)(A) is a 6 claim-processing rule that does not permit a district court to excuse a petitioner’s failure to 7 exhaust administrative remedies if the failure to do so is properly raised by the government. See 8 United States v. Keller, 2 F.4th 1278, 1282 (9th Cir 2021) (citations omitted). The exhaustion 9 requirement is mandatory. Id.; United States v. Hemmelgarn, 15 F.4th 1027, 1030-31 (10th Cir. 10 2021) (citing Keller and others); United States v. Kanohokula, 572 F. Supp. 3d 895, 901 (D. Haw. 11 2021) (citing Keller); Holden, 452 F. Supp. 3d at 973 (stating FSA does not provide court with 12 authority to excuse defendant’s failure to exhaust or to waive thirty-day waiting period). For 13 these reasons, even if petitioner had had standing in this case, the fact that he had not completed 14 the administrative exhaustion process prior to making these arguments still would have prevented 15 this court from considering this matter. Therefore, respondent’s motion to dismiss should be 16 granted. 17 VI. PLAIN LANGUAGE SUMMMARY FOR A PRO SE LITIGANT 18 When you filed your petition in September 2021, the BOP still had time to implement the 19 FSA. You had not yet experienced specific, particularized harm by the BOP’s application of the 20 FSA. That means you had no standing to file your federal petition when you did. As a result, the 21 law prevents this court from considering your petition. 22 Even if you had filed your petition after the BOP had run out of time to implement the 23 FSA, and you had been able to show that you had been directly harmed, the fact that you did not 24 first complete the BOP’s administrative grievance process would have also prevented this court 25 from considering your petition. The law requires that the BOP be given the first opportunity to 26 consider any issues you have with how it is carrying out your sentence. This court cannot 27 interfere with that process, nor can it be used to sidestep it. 28 //// ] For these reasons, the magistrate judge is recommending that your petition be dismissed 2 || without prejudice. 3 CONCLUSION 4 Accordingly, IT IS HEREBY RECOMMENDED that: 5 1. Respondent’s motion to dismiss the petition for writ of habeas corpus (ECF No. 8) be 6 | GRANTED; 7 2. This petition be DISMISSED without prejudice; and 8 3. The court DECLINE to issue the certificate of appealability referenced in 28 U.S.C. 9 | § 2253. 10 These findings and recommendations are submitted to the United States District Judge 11 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days 12 | after being served with these findings and recommendations, any party may file written 13 || objections with the court and serve a copy on all parties. Such a document should be captioned 14 | “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 15 || objections shall be filed and served within fourteen days after service of the objections. The 16 || parties are advised that failure to file objections within the specified time may waive the right to 17 || appeal the District Court’s order. Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 18 | DATED: March 23, 2023 * 19 ththienr—Chnp—e_ ALLISON CLAIRE 20 UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 28 12