(HC)Izaguirre-Guerrero v. Warden, FCI Mendota

Opinion

8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10

11 NORMAN D. IZAGUIRRE-GUERRERO, Case No. 1:23-cv-00845-EPG-HC

12 Petitioner, FINDINGS AND RECOMMENDATION TO GRANT RESPONDENT’S MOTION TO 13 v. DISMISS IN PART AND DISMISS THE PETITION FOR WRIT OF HABEAS 14 WARDEN, FCI MENDOTA, CORPUS

15 Respondent. ORDER DIRECTING CLERK OF COURT TO ASSIGN DISTRICT JUDGE 16 (ECF No. 13) 17 18 Petitioner Norman D. Izaguirre-Guerrero is a federal prisoner proceeding pro se with a 19 petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. For the reasons stated herein, the 20 undersigned recommends granting Respondent’s motion to dismiss in part and dismissing the 21 petition for writ of habeas corpus. 22 I. 23 BACKGROUND 24 In 2015, Petitioner was convicted in the United States District Court for the Northern 25 District of Iowa of conspiracy to distribute methamphetamine. On March 18, 2016, Petitioner 26 was sentenced to an imprisonment term of 150 months. (ECF No. 13 at 2.1) 27 1 In the instant petition for writ of habeas corpus, Petitioner challenges a Federal Bureau of 2 Prisons’ (”BOP”) policy of refusing to allow prisoners with immigration detainers to apply First 3 Step Act (“FSA”) time credits (“FTCs” or “ETCs”). (ECF No. 1.) On October 19, 2023, 4 Respondent filed a motion to dismiss the petition, arguing that: (1) “Petitioner’s FSA ETC claim 5 must be jurisdictionally dismissed for lack of constitutional standing and failure to state a claim 6 under law” because “BOP, Department of Homeland Security, and Immigration and Customs 7 Enforcement (ICE) records indicate Petitioner has a ‘final order of removal’”; (2) “Petitioner 8 lacks statutory authority under § 2241 to compel BOP’s FSA ETC discretionary (sentence end- 9 phase programming) action via declaratory and advisory opinions”; and (3) “Petitioner did not 10 administratively challenge any finding related to FSA ETC earning calculation determinations, 11 and/or ineligibility to apply FSA ETC sentence-offsets prior to filing the instant petition.” (ECF 12 No. 13 at 2–4.) 13 As Respondent had not provided the Court with a copy of the final order of removal 14 itself, the Court ordered Respondent to file a copy of the purported final order of removal. (ECF 15 No. 14.) Respondent filed a copy of the final order of removal under seal. (ECF Nos. 15, 16, 18.) 16 On February 29, 2024, Petitioner filed an opposition to the motion to dismiss. (ECF No. 19.) 17 II. 18 DISCUSSION 19 A. First Step Act 20 “On December 21, 2018, the First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194, 21 was enacted. The Act implemented a number of prison and sentencing reforms.” Bottinelli v. 22 Salazar, 929 F.3d 1196, 1197 (9th Cir. 2019). Under the First Step Act, a “prisoner, except for an 23 ineligible prisoner under subparagraph (D), who successfully completes evidence-based 24 recidivism reduction programming or productive activities, shall earn time credits[.]” 18 U.S.C. 25 § 3632(d)(4)(A). “Time credits earned under this paragraph by prisoners who successfully 26 participate in recidivism reduction programs or productive activities shall be applied toward time 27 in prerelease custody or supervised release.” 18 U.S.C. § 3632(d)(4)(C). However, a “prisoner is 1 order of removal under any provision of the immigration laws (as such term is defined in section 2 101(a)(17) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(17))).” 18 U.S.C. 3 § 3632(d)(4)(E)(i). 4 B. District Court Authority 5 Respondent contends that “Petitioner lacks statutory authority under § 2241 to compel 6 BOP’s FSA ETC discretionary (sentence end-phase programming) action via declaratory and 7 advisory opinions,” arguing that “Petitioner has failed to state a § 2241 claim” because “FSA 8 ETC discretionary actions, which involve, among other things, agency inmate evaluations and 9 assessment of available resources, are entrusted by law — such as inmate specific, 10 individualized, FSA ETC earning via EBRR and PA programming — to BOP discretionary 11 action.” (ECF No. 13 at 3.) 12 Pursuant to 18 U.S.C.§ 3632(d)(4)(C), “[t]ime credits earned . . . by prisoners who 13 participate in recidivism reduction programs or productive activities shall be applied toward time 14 in prerelease custody or supervised release” and the Director of the BOP “shall transfer eligible 15 prisoners, as determined under section 3624(g), into prerelease custody or supervised release.” 16 18 U.S.C. § 3632(d)(4)(C) (emphasis added). “The BOP is therefore required to apply time 17 credits to eligible prisoners who have earned them and cannot categorically make prisoners 18 ineligible for such credits in a manner that contravenes the statutory scheme set forth in 18 19 U.S.C. § 3632.” Sierra v. Jacquez, No. 2:22-cv-01509-RSL-BAT, 2022 WL 18046701, at *4 20 (W.D. Wash. Dec. 27, 2022), report and recommendation adopted, 2023 WL 184225 (W.D. 21 Wash. Jan. 13, 2023). Given that application of FTCs to eligible prisoners who have earned them 22 is required, not discretionary, under U.S.C.§ 3632(d)(4)(C), the Court finds that dismissal is not 23 warranted on the ground that it lacks jurisdiction to compel BOP discretionary action with 24 respect to FTCs. See Rodriguez v. Copenhaver, 823 F.3d 1238, 1242 (9th Cir. 2016) (“Although 25 a district court has no jurisdiction over discretionary designation decisions, it does have 26 jurisdiction to decide whether the Bureau of Prisons acted contrary to established federal law, 27 violated the Constitution, or exceeded its statutory authority when it acted pursuant to 18 U.S.C. 1 C. Exhaustion 2 “As a prudential matter, courts require that habeas petitioners exhaust all available 3 judicial and administrative remedies before seeking relief under § 2241.” Ward v. Chavez, 678 4 F.3d 1042, 1045 (9th Cir. 2012) (citations omitted). However, because it is not a jurisdictional 5 prerequisite, exhaustion can be waived. Id. (citations omitted). “Exhaustion is not required if: (1) 6 administrative remedies would be futile; (2) the actions of the agency clearly and unambiguously 7 violate statutory or constitutional rights; or (3) the administrative procedure is clearly shown to 8 be inadequate to prevent irreparable injury.” Terrell v. Brewer, 935 F.2d 1015, 1019 (9th Cir. 9 1991). 10 The BOP grievance process is set forth at 28 C.F.R. § 542.10 et seq. “As a first step in 11 this process, an inmate normally must present his complaint informally to prison staff using a 12 BP–8 form.” Nunez v. Duncan, 591 F.3d 1217, 1219 (9th Cir. 2010). “If the informal complaint 13 does not resolve the dispute, the inmate may make an ‘Administrative Remedy Request’ 14 concerning the dispute to the prison Warden using a BP–9 form.” Nunez, 591 F.3d 1219. “If the 15 Warden renders an adverse decision on the BP–9, the inmate may appeal to the Regional 16 Director using a BP–10 form.” Nunez, 591 F.3d 1219. “The inmate may appeal an adverse 17 decision by the Regional Director to the Central Office (also called the General Counsel) of the 18 BOP using a BP–11 form.” Nunez, 591 F.3d 1219. A final decision from the Office of General 19 Counsel completes the BOP’s administrative remedy process. 28 C.F.R. § 542.15(a). 20 Here, it is undisputed that Petitioner failed to exhaust administrative remedies. Petitioner 21 contends that exhaustion is futile. (ECF No. 1 at 2, 7, 14–16.) The Court will waive the 22 exhaustion requirement in the instant matter. Given Respondent’s determination that Petitioner is 23 “jurisdictionally and statutorily barred from FSA ETC sentence-offsets due to the final order of 24 removal,” (ECF No. 13 at 3), the Court finds that pursuing administrative remedies would be 25 futile and thus, dismissal is not warranted for nonexhaustion. 26 D. Final Order of Removal 27 A prisoner is ineligible to apply FTCs “if the prisoner is the subject of a final order of 1 101(a)(17) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(17))).” 18 U.S.C. 2 § 3632(d)(4)(E)(i). Here, Respondent contends that Petitioner is ineligible to apply FTCs because 3 he is the subject of a final order of removal. (ECF No. 13 at 3.) Respondent has filed a copy of a 4 decision by an immigration judge, dated February 10, 2006, concluding that Petitioner is 5 removable and ordering that Petitioner be removed to Honduras. (ECF No. 18.) Petitioner does 6 not appear to contest the existence of the February 10, 2006 order of removal or that a final order 7 of removal precludes the application of FTCs application towards prerelease custody or 8 supervised release. Rather, Petitioner argues that a final order of removal does not preclude the 9 application of FTCs towards his sentence and early release because “[n]o where in the entire 10 FSA statute bars application of FSA time credits towards a term of imprisonment and early 11 release of any prisoner other than those prisoners described in Subparagraph § 3632(d)(4)(D).” 12 (ECF No. 19 at 3–4.) 13 “[T]he doctrine of expressio unius est exclusio alterius . . . teaches that omissions are the 14 equivalent of exclusions when a statute affirmatively designates certain persons, things, or 15 manners of operation.” ARC Ecology v. U.S. Dep’t of Air Force, 411 F.3d 1092, 1099–100 (9th 16 Cir. 2005) (citing Boudette v. Barnette, 923 F.2d 754, 756–57 (9th Cir. 1991); In re McLinn, 744 17 F.2d 677, 683 (9th Cir. 1984)). Here, the First Step Act provides that “[t]ime credits earned . . . 18 by prisoners who participate in recidivism reduction programs or productive activities shall be 19 applied toward time in prerelease custody or supervised release.” 18 U.S.C. § 3632(d)(4)(C) 20 (emphasis added). The statute only confers authority to apply time credits earned by prisoners 21 who participate in recidivism reduction programs or productive activities toward time in 22 prerelease custody or supervised release, and thus, withholds authority to apply time credits in a 23 different manner (i.e., toward a term of imprisonment or early release). See Setser v. United 24 States, 566 U.S. 231, 238 (2012) (“The Latin maxim . . . expressio unius est exclusio alterius . . . 25 might have application here if the provision in question were a conferral of authority . . . . Giving 26 . . . authority in only specified circumstances could be said to imply that it is withheld in other 27 circumstances.”); United States v. Crane, 979 F.2d 687, 691 (9th Cir. 1992) (“The maxim of 1 limits a thing to be done in a particular mode, it includes the negative of any other mode.’” 2 (quoting Botany Worsted Mills v. United States, 278 U.S. 282, 289 (1929))). 3 “[I]n the deportation context, a ‘final order of removal’ is a final order ‘concluding that 4 the alien is deportable or ordering deportation.’” Nasrallah v. Barr, 140 S. Ct. 1683, 1690 (2020) 5 (quoting 8 U.S.C. § 1101(a)(47)(A)). Here, the February 10, 2006 decision by the immigration 6 judge concludes that Petitioner is removable and orders that Petitioner be removed to Honduras. 7 (ECF No. 18.) Accordingly, the Court finds that Petitioner “is the subject of a final order of 8 removal” for purposes of 18 U.S.C. § 3632(d)(4)(E)(i), and thus, is ineligible to apply FTCs 9 toward time in prerelease custody or supervised release. Additionally, as set forth above, the 10 First Step Act does not authorize application of FTCs toward a term of imprisonment or early 11 release. Therefore, the Court finds that Petitioner fails to state a claim for habeas relief under 28 12 U.S.C. § 2241. 13 III. 14 RECOMMENDATION & ORDER 15 Based on the foregoing, the undersigned HEREBY RECOMMENDS that Respondents’ 16 motion to dismiss (ECF No. 13) be GRANTED in part and the petition for writ of habeas corpus 17 be DISMISSED. 18 Further, the Clerk of Court is DIRECTED to randomly assign a District Court Judge to 19 the present matter. 20 This Findings and Recommendation is submitted to the assigned United States District 21 Court Judge, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of the Local 22 Rules of Practice for the United States District Court, Eastern District of California. Within 23 THIRTY (30) days after service of the Findings and Recommendation, any party may file 24 written objections with the court and serve a copy on all parties. Such a document should be 25 captioned “Objections to Magistrate Judge’s Findings and Recommendation.” Replies to the 26 objections shall be served and filed within fourteen (14) days after service of the objections. The 27 assigned United States District Court Judge will then review the Magistrate Judge’s ruling 1 | the specified time may waive the right to appeal the District Court’s order. Wilkerson v. 2 | Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th 3 | Cir. 1991)). 4 5 IT IS SO ORDERED. 6| Dated: _March 28, 2024 [Je hey — 4 UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28