(HC)Perez-Valencia v. Warden

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MAYEL PEREZ-VALENCIA, Case No. 1:23-cv-1123 JLT SAB (HC)

12 Petitioner, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, GRANTING 13 v. RESPONDENT’S MOTION TO DISMISS, DISMISSING THE PETITION FOR WRIT OF 14 WARDEN, HABEAS CORPUS, AND DIRECTING THE CLERK OF COURT TO CLOSE THE CASE 15 Respondent. (Docs. 8, 19) 16 17 Mayel Perez-Valencia is a federal prisoner proceeding pro se and in forma pauperis with 18 a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. Petitioner asserts that he 19 “earned time credits (‘ETC’) which, under the First Step Act, entitle him to immediate transfer 20 into supervised release or pre-release custody, however, the BOP refuses to enable him to apply 21 his ETC’s (sic) because he has an immigration detainer with a box checked.” (Doc. 1 at 6.) 22 Respondent moves to dismiss the petition, arguing “Petitioner did not exhaust his administrative 23 remedies” and that he is “jurisdictionally and statutorily barred from [First Step Act earned time 24 credit] sentence-offsets due to the final order of removal from another federal court.” (Doc. 8 at 25 1, 3.) Second, Respondent argues that “Petitioner lacks statutory authority under § 2241 to 26 compel BOP's FSA ETC discretionary (sentence end-phase programming) action via declaratory 27 and advisory opinions.” (Id. at 3.) Finally, Respondent asserts that Petitioner did not 28 “administratively challenge[] any finding related to FSA ETC earner calculation determinations, 1 and/or ineligibility to apply FSA ETC sentence-offsets.” (Id. at 4.) Respondent filed the final 2 order of removal in support of the motion to dismiss. (Doc. 15.) 3 As an initial matter, the magistrate judge found “dismissal is not warranted on the ground 4 that it lacks jurisdiction to compel BOP discretionary action regarding [ETCs] because 5 application of [ETCs] to eligible prisoners who have earned them is required, not discretionary, 6 under the statute.” (Doc. 19 at 5, emphasis in original.) The magistrate judge determined that 7 “the 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. 8 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 6, 12 7.) Therefore, the magistrate judge found “Petitioner cannot obtain the relief he seeks in the 13 petition,” and recommended Respondent’s motion to dismiss be granted. (Id. at 7.) 14 The Court served the Findings and Recommendations on the parties and notified 15 Petitioner that any objections were due within 30 days. (Doc. 19 at 7.) The Court advised the 16 parties that the “failure to file objections within the specified time may waive the right to appeal 17 the District Court’s order.” (Id. at 7-8, citing Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th 18 Cir. 2014).) Petitioner did 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 July 1, 2024 (Doc. 19) are 23 ADOPTED in full. 24 2. Respondent’s motion to dismiss (Doc. 8) is GRANTED. 25 /// 26 /// 27 /// 28 /// 1 3. The petition for writ of habeas corpus is DISMISSED, and the Clerk of Court is 2 | directed to close the case. 3 4 IT IS SO ORDERED. 5 Dated: _ August 15, 2024 Cerin | Tower TED STATES DISTRICT JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28