(HC) Ramos v. Warden, F.C.I. Mendota

Opinion

1 2 3 4 5 6 7 10 11 MANUEL RAMOS, Case No. 1:23-cv-0922 JLT SAB (HC) 12 Petitioner, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, GRANTING 13 RESPONDENT’S MOTION TO DISMISS, DISMISSING PETITION FOR WRIT OF 14 v. HABEAS CORPUS, AND DIRECTING CLERK OF COURT TO ENTER JUDGMENT

16 Respondent. (Docs. 9, 10, and 21) 17 18 Manuel Ramos is a federal prisoner proceeding pro se and in forma pauperis with a 19 petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. Petitioner asserts that he “earned 20 time credits (‘ETC’) which, under the First Step Act, entitled him to immediate transfer into 21 supervised release or pre-release custody, however, the BOP refuses to enable him to apply his 22 ETC’s (sic) because he has an immigration detainer.” (Doc. 1 at 6.) Respondent moves to 23 dismiss the petition, arguing Petitioner did not exhaust his administrative remedies and that he is 24 “jurisdictionally and statutorily barred from [First Step Act earned time credit] sentence-offsets 25 due to the final order of removal from another federal court.” (Doc. 9 at 1, 3.) Respondent also 26 filed the final order of removal. (Doc. 17.) 27 As an initial matter, the magistrate judge observed that Petitioner lodged an amended 28 petition after Respondent filed a motion to dismiss. (Doc. 21 at 3, citing Doc. 10.) The 1 magistrate judge found Petitioner was not entitled to amend his petition as a matter of law 2 because the lodged petition was filed more than 21 days after the motion to dismiss. (Id. at 2.) In 3 addition, the magistrate judge observed that the lodged document appeared to duplicate the initial 4 petition. (Id.) Therefore, the magistrate judge recommended that to the extent the lodged petition 5 may be construed as a motion to amend, the motion be denied. (Id.) 6 Turning to Respondent’s motion to dismiss, the magistrate judge found that “the 7 exhaustion requirement should be excused in this case due to futility because Respondent has 8 determined that ‘Petitioner is jurisdictionally and statutorily barred from FSA ETC sentence- 9 offsets due to a final order of removal.’” (Doc. 21 at 6, quoting Doc. 9 at 3.) Nevertheless, the 10 magistrate judge observed that a final order of removal directs Petitioner’s removal from the 11 United States and Petitioner “is ineligible to apply First Step Act earned time credits.” (Id. at 7, 12 8.) Therefore, the magistrate judge found Petition “cannot obtain the relief he seeks in the 13 petition,” and recommended Respondent’s motion to dismiss be granted. (Id. at 8.) 14 The Court served the Findings and Recommendations on Petitioner and notified him that 15 any objections were due within 30 days. (Doc. 21 at 9.) The Court advised him that the “failure 16 to file objections within the specified time may waive the right to appeal the District Court’s 17 order.” (Id., citing Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014).) Petitioner did 18 not file objections, and the time to do so has passed. 19 According to 28 U.S.C. § 636(b)(1), this Court performed a de novo review of this case. 20 Having carefully reviewed the matter, the Court concludes the Findings and Recommendations 21 are supported by the record and proper analysis. Thus, the Court ORDERS: 22 1. The Findings and Recommendations issued on June 11, 2024 (Doc. 21) are 23 ADOPTED in full. 24 2. Petitioner’s lodged petition, construed as a motion to amend (Doc. 10), is 26 3. Respondent’s motion to dismiss (Doc. 9) is GRANTED. 27 4. The petition for writ of habeas corpus is DISMISSED. 28 /// 1 5. The Clerk of Court is directed to close the case. 2 4| Dated: _ August 8, 2024 Charis [Tourn TED STATES DISTRICT JUDGE 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28