(HC) Pettie v. Thompson

• Court: District Court, E.D. California
• Decided: April 21, 2022
• Docket: 2:21-cv-02161
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ROBERT PETTIE, No. 2:21-cv-02161-TLN-CKD P 12 Petitioner, 13 v. FINDINGS AND RECOMMENDATIONS 14 PAUL THOMPSON, et al., 15 Respondents. 16 17 Petitioner, a federal prisoner proceeding pro se, has filed a petition for a writ of habeas 18 corpus pursuant to 28 U.S.C. § 2241.1 On December 6, 2021, the court ordered respondent to file 19 an answer to the petition or a motion to dismiss within 60 days. ECF No. 3. Respondent filed a 20 motion to dismiss the § 2241 petition on February 4, 2022. ECF No. 8. Petitioner has not filed 21 an opposition and the time to do so has expired. For the reasons explained below, the 22 undersigned recommends granting respondent’s motion to dismiss based on lack of ripeness. 23 I. Factual and Procedural History 24 A review of the docket from the Eastern District of Washington, which this court takes 25 judicial notice of, indicates that petitioner was convicted of the distribution of 26 methamphetamine.2 See ECF No. 8-1 (docket sheet for Case No. 2:12-cr-06056-SAB-1). On 27 1 Petitioner paid the $5.00 filing fee for this action. 28 2 “[C]ourts routinely take judicial notice of documents filed in other courts... to establish the fact 1 February 28, 2015, petitioner was sentenced to 192 months of incarceration followed by 5 years 2 of supervised release. See ECF No. 8-1 at 17. 3 Petitioner, who is presently confined at FCI-Herlong, filed a habeas corpus petition 4 pursuant to 28 U.S.C. § 2241 on September 25, 2021.3 ECF No. 1. In his habeas application, 5 petitioner seeks a declaratory judgment that he is entitled to earned time credits (“ETCs”) 6 pursuant to the First Step Act of 2018 (“FSA”). ECF No. 1 at 1. Specifically, petitioner 7 calculates that he is entitled to earned time credits resulting in an early release date of March 10, 8 2024. ECF No. 1 at 1. Absent these earned time credits, petitioner’s expected release date is 9 August 19, 2028. ECF No. 1 at 7. 10 Respondents move to dismiss the petition based on lack of Article III standing and 11 ripeness, lack of jurisdiction, petitioner’s failure to exhaust his administrative remedies, and 12 because there is no statutory authority to compel the Bureau of Prisons to perform a discretionary 13 act. ECF No. 8. First and foremost, respondents submit that there is no “case or controversy” for 14 the court to adjudicate because “neither [p]etitioner’s custodial status nor custody term has been 15 impacted by any BOP action.” ECF No. 8 at 4. Accordingly, petitioner’s § 2241 application is 16 nothing more than an abstract disagreement which petitioner does not have standing to challenge. 17 In support of their motion to dismiss, respondents submitted a declaration from Charles 18 Hubbard, a Correctional Programs Administrator with the Bureau of Prisons, who reviewed 19 petitioner’s inmate records. ECF No. 8-2. Mr. Hubbard describes the three-level administrative 20 review process available to federal inmates challenging BOP actions, and indicates that petitioner 21 has not exhausted his administrative remedies related to earned time credits under the First Step 22 Act. ECF No. 8-2 at 3. Mr. Hubbard describes the specific provisions of the First Step Act 23 related to earned time credits for participation in Evidence Based Recidivism Reduction Programs 24 (“EBRRs”) and Productive Activities (“PAs”). ECF No. 8-2 at 3-8. Based on his low risk score,

25 of such litigation and related filings.” Kramer v. Time Warner Inc., 937 F.2d 767, 774 (2d Cir. 1991) (citation omitted). 26

27 3 The filing date has been calculated using the prison mailbox rule. See Houston v. Lack, 487 U.S. 266 (1988). Although the petition was signed on September 25, 2021, it was not docketed 28 with the court until November 23, 2021. 1 petitioner has been determined eligible for earned time credits under the FSA. ECF No. 8-2 at 7. 2 However, since his projected release date is not until August 19, 2028, the BOP has not yet 3 calculated the exact ETCs to be awarded to him. Id. at 8. 4 II. Legal Standards 5 A. Section 2241 Relief 6 Federal inmates have two avenues for pursuing habeas corpus relief. First, a challenge to 7 a federal prisoner’s conviction or sentence can be raised via a motion to vacate, set aside, or 8 correct the sentence pursuant to 28 U.S.C. § 2255. Section 2255 motions are filed in the judicial 9 district where the conviction occurred. Alternatively, a federal inmate challenging the manner, 10 location, or conditions involved in the execution of their sentence, may file a habeas corpus 11 petition pursuant to 28 U.S.C. § 2241. Hernandez v. Campbell, 204 F.3d 861, 864 (9th Cir. 12 2000). Jurisdiction over a § 2241 petition lies in the district of the prisoner’s confinement. 13 B. First Step Act 14 The First Step Act of 2018 (“FSA”) made several important changes to the duration of 15 federal prison sentences. See Pub. L. No. 115-391, 132 Stat. 5194. As relevant to the pending 16 habeas petition, it created an evidence-based recidivism reduction program that incentivizes 17 inmates to participate in and complete programs and productive activities by awarding them, inter 18 alia, “10 days of time credits…” and “an additional 5 days of time credits for every 30 days of 19 successful participation” if the prisoner is classified as a minimum or low risk of recidivism. 18 20 U.S.C. § 3632(d)(4). In order to apply these earned time credits, the BOP was first required to 21 develop a risk and needs assessment system within 210 days after enactment of the FSA. 18 22 U.S.C. § 3632(a). By January 15, 2020, the BOP was required to conduct an initial intake risk 23 and needs assessment for each prisoner and “begin to assign prisoners to appropriate evidence- 24 based recidivism reduction programs based on that determination.” 18 U.S.C. 3621(h). The FSA 25 also created a phase-in period of up to 2 years following the initial risk and needs assessment for 26 the BOP to “provide such evidence-based recidivism reduction programs and productive activities 27 for all prisoners.” 18 U.S.C. § 3621(h)(2). “During the 2-year period…, the priority for such 28 programs and activities shall be accorded based on a prisoner’s proximity to release date.” 18 1 U.S.C. § 3621(h)(3). Thus, by January 15, 2022, the BOP was required to provide the necessary 2 recidivism reduction programs and productive activities for all prisoners to earn additional time 3 credits to reduce their sentences under the FSA if they meet the other relevant criteria. 4 The BOP implemented its final agency rules regarding the earning and awarding of ETC’s under 5 the First Step Act on January 19, 2022. See 87 Fed. Reg. 2,705-01, 2022 WL 159155 (F.R.) 6 (codified at 28 C.F.R. §§ 523.40-523.44) (explaining that “[t]he final rule adopts a more 7 straightforward and more administratively manageable approach that is consistent with the FSA’s 8 goal…” by awarding ten days of FSA time credits “[f]or every thirty-day period that an eligible 9 inmate successfully participates in EBRR Programs or PAs….”). 10 III. Analysis 11 Against this federal statutory backdrop, the court turns to the specific issues raised in 12 respondents’ motion to dismiss. According to Article III of the United States Constitution, 13 federal courts have jurisdiction over “cases” and “controversies.” As a threshold jurisdictional 14 matter, parties are required to have an actual controversy that “make[s] resolution of the 15 controverted issue a practical necessity.” See Poe v. Ullman, 367 U.S. 497, 502-05 (1961). This 16 requirement of ripeness serves “to prevent the courts, through avoidance of premature 17 adjudication, from entangling themselves in abstract disagreements over administrative policies, 18 and also to protect the agencies from judicial interference until an administrative decision has 19 been formalized and its effects felt in a concrete way by the challenging parties.” Abbott 20 Laboratories v. Gardner, 387 U.S. 136, 148-49 (1967), abrogated on other grounds by Califano v. 21 Sanders, 430 U.S. 99 (1977). A claim is not yet ripe for judicial review “if it involves contingent 22 future events that may not occur as anticipated, or indeed may not occur at all.” United States v. 23 Streich, 560 F.3d 926, 931 (9th Cir. 2009) (quoting Thomas v. Union Carbide Agr. Prods. Co., 24 473 U.S. 568, 580-81 (1985)). 25 In this case, the BOP has not yet calculated petitioner’s ETCs because his release date is 26 too far in the future and the agency has chosen to calculate FSA sentencing credits on a rolling 27 basis with those with an impending release date given first priority. See ECF No. 8-2 28 (Declaration of Charles Hubbard); see also 87 Fed. Reg. 2,705-01, 2022 WL 159155 (F.R.) 1 (explaining that a “phased-in approach is appropriate and warranted, given that the FSA has been 2 the most impactful congressional action taken concerning the Bureau of Prisons in recent years, 3 requiring major changes to existing systems and processes, the development of new systems, and 4 changes that apply to approximately 130,000 current inmates.”). The FSA mandated giving 5 prisoners with impending release dates priority in participating in the programs and activities to 6 earn these time credits, and, at this juncture, the court has no way of knowing exactly how the 7 BOP will actually calculate petitioner’s earned time credits. Petitioner is essentially seeking an 8 advisory opinion from this court, although he phrases it in the form of a request for a “declaratory 9 judgment.” ECF No. 1 at 1; see e.g., Flast v. Cohen, 392 U.S. 83, 96 (1968) (emphasizing that “it 10 is quite clear that ‘the oldest and most consistent thread in the federal law of justiciability is that 11 the federal courts will not give advisory opinions.’”) (internal citation omitted). The issue before 12 the court is merely an abstract disagreement between the parties. As a result, this case is not ripe 13 for adjudication because it hinges “upon contingent future events that may not occur as 14 anticipated….” Streich, 560 F.3d at 931. The undersigned therefore recommends granting 15 respondent’s motion to dismiss the pending § 2241 petition based on lack of ripeness. In light of 16 this recommendation and in the interests of judicial economy, the undersigned finds it 17 unnecessary to address the remaining grounds raised in respondents’ motion to dismiss. 18 IV. Plain Language Summary for Pro Se Party 19 The following information is meant to explain this order in plain English and is not 20 intended as legal advice. 21 After reviewing the provisions of the First Step Act, the undersigned has concluded that 22 there is no specific case or controversy that you are challenging. This court cannot simply issue a 23 declaratory judgment, as you request, without any pending dispute between the parties. The 24 undersigned recommends granting respondent’s motion to dismiss your § 2241 petition. 25 If you disagree with this recommendation, you have 14 days to explain why it is not the 26 correct result. Label your explanation “Objections to Magistrate Judge’s Findings and 27 Recommendations.” The district court judge assigned to your case will review the matter and 28 issue a final decision. 1 Accordingly, IT IS HEREBY RECOMMENDED that: 2 1. Respondent’s motion to dismiss (ECF No. 8) be granted. 3 2. Petitioner’s application for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 be 4 dismissed without prejudice based on lack of ripeness. 5 These findings and recommendations are submitted to the United States District Judge 6 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days 7 || after being served with these findings and recommendations, any party may file written 8 || objections with the court and serve a copy on all parties. Such a document should be captioned 9 || “Objections to Magistrate Judge’s Findings and Recommendations.” The parties are advised that 10 | failure to file objections within the specified time may waive the right to appeal the District 11 || Court’s order. Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 12 | Dated: April 21, 2022 / aa / x ly a 13 CAROLYN K DELANEY 14 UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 12/pett2 161.2241. F&R.docx 21 22 23 24 25 26 27 28