(HC) Sayasane v. Warden, FCI Mendota

Filing 26

ORDER ADOPTING Findings and Recommendations, GRANTING Respondent's Motion to Dismiss, dismissing Petition for Writ of Habeas Corpus, and directing Clerk of Court to enter Judgment and close case 10 , 18 signed by District Judge Jennifer L. Thurston on 6/6/2024. CASE CLOSED. (Lundstrom, T)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 VONGSAVAT SAYASANE, Petitioner, 12 13 v. 14 WARDEN, F.C.I. MENDOTA, 15 Case No. 1:23-cv-1517 JLT SKO (HC) ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, GRANTING RESPONDENT’S MOTION TO DISMISS, DISMISSING PETITION FOR WRIT OF HABEAS CORPUS, AND DIRECTING CLERK OF COURT TO ENTER JUDGMENT AND CLOSE CASE Respondent. (Docs. 10, 18) 16 17 18 Vongsavat Sayasane 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 under the First Step Act, which would entitle him to an earlier release date, but the 21 Bureau of Prisons refuses to apply his ETCs because Petitioner as an immigration detainer. (Doc. 22 1 at 2, 17-18.) Respondent moves to dismiss the petition, arguing Petitioner did not exhaust his 23 administrative remedies and that he “is barred as a matter of law from applying ETCs.” (Doc. 12 24 at 1, 3 [emphasis omitted].) 25 The magistrate judge observed that “[a]ccording to BOP records, Petitioner has been 26 determined ineligible to apply FSA time credits to his sentence, not because of an immigration 27 detainer, but because he is subject to a ‘final order of removal.’” (Doc. 25 at 2.) The magistrate 28 judge noted the final order of removal was filed under seal with the Court. (Id. at 2, 5.) The 1 1 magistrate judge also found Petitioner did not exhaust his administrative remedies, and that if had 2 he done so “the BOP would have advised him of his immigration status and his ineligibility for 3 application of FTCs pursuant to 18 U.S.C. § 3632(d)(4)(E)(i).” (Id. at 4.) Consequently, the 4 magistrate judge recommended the petition be dismissed. (Id. at 5.) 5 The Court served the Findings and Recommendations on Petition and notified him that 6 any objections were due within 21 days. (Doc. 25 at 6.) The Court advised Petitioner the “failure 7 to file objections within the specified time may waive the right to appeal the Order of the District 8 Court.” (Id., citing Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).) Petitioner did not file 9 objections, and the time to do so has passed. 10 According to 28 U.S.C. § 636(b)(1), this Court performed a de novo review of this case. 11 Having carefully reviewed the entire matter, the Court concludes the Findings and 12 Recommendations are supported by the record and proper analysis. Thus, the Court ORDERS: 13 1. 14 The Findings and Recommendations issued on May 9, 2024 (Doc. 25) are ADOPTED in full. 15 2. Respondent’s motion to dismiss (Doc. 12) is GRANTED. 16 3. The petition for writ of habeas corpus is DISMISSED. 17 4. The Clerk of Court is directed to enter judgment and close the case. 18 In the event a notice of appeal is filed, no certificate of appealability is required.1 19 20 IT IS SO ORDERED. Dated: 21 June 6, 2024 22 23 24 25 26 1 27 28 A certificate of appealability will not be required because this is an order denying a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241, not a final order in a habeas proceeding in which the detention complained of arises out of process issued by a state court. Forde v. U.S. Parole Commission, 114 F.3d 878 (9th Cir. 1997); see Ojo v. INS, 106 F.3d 680, 681-682 (5th Cir. 1997); Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir. 1996). 2

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