(HC)Jones v. Thompson et al

Filing 13

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Deborah Barnes on 11/17/2021 RECOMMENDING petitioner's 2 motion for preliminary injunction be denied; respondent's 9 motion to dismiss be granted; the 1 petition for writ of habeas corpus under 28 U.S.C. § 2241 be dismissed without prejudice; and the Clerk be directed to close this case. Referred to Judge Troy L. Nunley; Objections to F&R due within 30 days. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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TREVIN D. JONES,

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No. 2:21-cv-0403 TLN DB P

Petitioner,
v.

FINDINGS AND RECOMMENDATIONS

PAUL THOMPSON,

(ECF Nos. 2, 9)

Respondent.

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Petitioner Trevin D. Jones is a federal prisoner proceeding without counsel with a petition

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for a writ of habeas corpus under 28 U.S.C. § 2241. (ECF No. 1.) Petitioner claims he is entitled

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to relief under the First Step Act of 2018 in the form of additional credits and, as a result,

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immediate transfer to pre-release custody. Petitioner has also filed a motion for preliminary

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injunction seeking the same relief. (ECF No. 2.)

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Respondent has filed a motion to dismiss. (ECF No. 9.) Respondent asserts the petition

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should be dismissed on grounds that the court lacks jurisdiction to compel a discretionary act,

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petitioner failed to exhaust administrative remedies, the petition fails to present an actual case or

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controversy, and the petition fails to state a claim. Petitioner has opposed the motion to dismiss.

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(ECF No. 12). Having considered the parties’ arguments and applicable law, the undersigned

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recommends the court grant the motion to dismiss on grounds that petitioner has not exhausted
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available administrative remedies, and the request for relief is premature, and dismiss the petition

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accordingly.

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I. Legal Standards

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A district court may grant habeas relief to a federal prisoner who is in custody in violation

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of federal law. See 28 U.S.C. § 2241. A petition challenging the manner, location, or conditions

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of a sentence’s execution is brought under section 2241 in the custodial court. See Hernandez v.

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Campbell, 204 F.3d 861, 864 (9th Cir. 2000). The United States Bureau of Prisons’ (“BOP”)

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calculation of sentencing credit is an issue pertaining to the execution of a sentence which a

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habeas petitioner may challenge through such a petition. See Zavala v. Ives, 785 F.3d 367, 370

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n.3 (9th Cir. 2015); United States v. Giddings, 740 F.2d 770, 772 (9th Cir. 1984).

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No specific habeas rule applies to motions to dismiss. See Hillery v. Pulley, 533 F. Supp.

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1189, 1194 (E.D. Cal. 1982) (“Motion practice in habeas corpus is not specifically provided for in

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the rules but must be inferred from their structure and the Advisory Committee Notes.”). The

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Court of Appeals for the Ninth Circuit construes a motion to dismiss a habeas petition brought

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under 28 U.S.C. § 2254 as a request to dismiss under Rule 4 of the Rules Governing Section 2254

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Cases in the United States District Courts. See O’Bremski v. Maass, 915 F.2d 418, 420 (9th Cir.

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1990). Courts in this district have, in turn, applied the Rule 4 framework to a motion to dismiss a

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habeas petition brought under 28 U.S.C. § 2241. E.g., Battle v. Holbrook, No. 2:20-cv-01851-

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JAM-JDP, 2021 WL 4132336, at *1 (E.D. Cal. Sept. 10, 2021). Under Rule 4, the court evaluates

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whether it “plainly appears” the petitioner is not entitled to relief and, if so, recommends

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dismissal of the petition. See Rule 4 of the Rules Governing Section 2254 Cases.

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In ruling on a motion to dismiss, the court “accept[s] the factual allegations in the

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[petition] as true and construe[s] the pleadings in the light most favorable to the non-moving

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party.” Fayer v. Vaughn, 649 F.3d 1061, 1064 (9th Cir. 2011) (quoting Manzarek v. St. Paul Fire

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& Marine Ins. Co., 519 F.3d 1025, 1030 (9th Cir. 2008)). In general, exhibits attached to a

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pleading are “part of the pleading for all purposes.” Hartmann v. Cal. Dept. of Corr. and Rehab.,

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707 F.3d 1114, 1124 (9th Cir. 2013) (quoting Fed. R. Civ. P. 10(c)).

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II. Exhaustion

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Under the doctrine of exhaustion, “no one is entitled to judicial relief for a supposed or

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threatened injury until the prescribed... remedy has been exhausted.” McKart v. United States,

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395 U.S. 185, 193 (1969) (citation and internal quotation marks omitted). Exhaustion can be

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either statutorily or judicially required. Laing v. Ashcroft, 370 F.3d 994, 997-98 (9th Cir. 2004).

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Title 28 U.S.C. § 2241 does not contain an exhaustion requirement, and thus, exhaustion

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is not a jurisdictional prerequisite. Brown v. Rison, 895 F.2d 533, 535 (9th Cir. 1990). For

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prudential reasons, however, federal courts require section 2241 petitioners to exhaust their

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administrative remedies prior to seeking habeas relief. Ward v. Chavez, 678 F.3d 1042, 1045 (9th

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Cir. 2012); see also Singh v. Napolitano, 649 F.3d 899, 900 (9th Cir. 2011). Requiring a

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petitioner to exhaust administrative remedies (1) aids judicial review “by allowing the appropriate

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development of a factual record in an expert forum,” (2) conserves “the court’s time because of

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the possibility that the relief applied for may be granted at the administrative level,” and (3)

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allows “the administrative agency an opportunity to correct errors occurring in the course of

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administrative proceedings.” Ruviwat v. Smith, 701 F.2d 844, 845 (9th Cir. 1983) (per curiam).

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Dismissal is appropriate when a federal prisoner has not exhausted the administrative remedies

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made available by the BOP. Martinez v. Roberts, 804 F.3d 570, 571 (9th Cir. 1986) (per curiam).

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Courts have discretion to waive the exhaustion requirement when administrative remedies

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are inadequate, when their exercise would be futile, or when irreparable injury would result

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without immediate judicial intervention. See, e.g., Ward, 678 F.3d at 1045; Laing, 370 F.3d at

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1000. “[C]ourts have discretion to waive the exhaustion requirement when prudentially required

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[but] this discretion is not unfettered.” Laing, 370 F.3d at 998; see also Murillo v. Mathews, 588

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F.2d 759, 762, n.8 (9th Cir. 1978) (“Although the ‘[a]pplication of the rule requiring exhaustion is

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not jurisdictional, but calls for the sound exercise of judicial discretion,’ it is not lightly to be

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disregarded.”) (citation omitted). A “key consideration” is whether “‘relaxation of the

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requirement would encourage the deliberate bypass of the administrative scheme.’” Laing, 370

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F.3d at 1000 (citation omitted).

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Here, petitioner does not claim to have completed the administrative review process with

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respect to his present habeas claims. Respondent asserts petitioner filed an Administrative

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Remedy Appeal at the institutional level, namely Administrative Remedy 1058863-Fl, and at the

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Regional level, namely Administrative Remedy 1058863-Rl, but has not filed an appeal at the

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next and final required level, to General Counsel in the Central Office of the BOP, and thus that

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petitioner has failed to exhaust available administrative remedies with respect to the issues raised

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in the petition. (ECF No. 9-1 at 2-3.) Petitioner asks the court to exercise discretion to waive the

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exhaustion requirement because the petition challenges an established BOP policy, such that

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exhaustion would be futile, and because the claim turns on a question of statutory construction.

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(ECF No. 1 at 2.)

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However, this case does not involve solely a dispute of statutory construction. As set forth

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below, petitioner makes factual assertions as to his claimed participation in activities for which he

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earned time credits and the amount of earned time credits he thereby accrued (see ECF No. 1 at

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19-20), but, as discussed below, the record before the court is inadequate to allow the court to

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resolve such factual issues. Thus, prudential concerns weigh against excusing compliance with

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the exhaustion requirement. See Chua Han Mow v. United States, 730 F.2d 1308, 1313 (9th Cir.

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1984) (affirming district court’s refusal – due to lack of administrative exhaustion – to consider

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habeas petition based on failure to accord credit for time served when there were factual disputes

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about the prior time served and the failure to exhaust rendered the record inadequate for judicial

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review). Other district courts in this circuit to consider the exhaustion issue as it applies to similar

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claims for earned time credits under the First Step Act have declined to waive exhaustion. See,

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e.g., Lister v. Gatt, No. 5:21-cv-0957-VBF-GJS, 2021 WL 4306316, at *6 (C.D. Cal. Sept. 22,

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2021); Phares v. Bradley, No. 2:20-cv-10715-GWG-JS, 2021 WL 3578674, at *8 (C.D. Cal. Apr.

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22, 2021).

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In addition, to the extent petitioner was on notice of the exhaustion requirement before he

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filed the petition, waiving the exhaustion requirement could encourage deliberate bypass of the

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administrative remedy scheme within the meaning of Laing’s caveat. Exhaustion would allow the

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BOP the opportunity to grant the relief sought, if warranted, but even if no relief were
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forthcoming, exhaustion would allow the BOP to explain why not. See Woodford v. Ngo, 548

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U.S. 81, 93 (2006).

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Finally, the assessment of whether a prisoner’s programming qualifies for earned time

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credit status under the First Step Act and, if so, to what extent, as well as how it affects the

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sentence, falls particularly within the BOP’s expertise. This assessment should be undertaken by

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the agency before a federal court is asked to make such assessment and calculations on an

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undeveloped record. Thus, this is a situation in which the administrative exhaustion requirement

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should not be waived. Petitioner’s failure to exhaust warrants dismissal.

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III. The Petition is Premature

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Even if petitioner had exhausted his administrative remedies, the petition should still be

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dismissed because it is premature. The First Step Act provisions at issue do not go into effect

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until January 15, 2022. District courts in the Ninth Circuit have concluded such petitions as the

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present petition are premature and unripe. See, e.g., Khouanmany v. Gutierrez, No. 5:21-cv-0989-

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JFW-JDE, 2021 WL 4394591, at *3, report and recommendation adopted, 2021 WL 4391207

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(C.D. Cal., Sep. 24, 2021); Matecki v. Thompson, No. 2:21-cv-0268-WBS-DMC, 2021 WL

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2457691, at *3, report and recommendation adopted, 2021 WL 3206571 (E.D. Cal. July 29,

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2021); Hand v. Barr, No. 1:20-cv-00348, 2021 WL 392445-AWI-SAB, at *5, report and

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recommendation adopted, 2021 WL 1853295 (E.D. Cal. May 10, 2021). The undersigned makes

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the same finding in regard to the present petition.

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A federal inmate can hasten his release from prison by earning what is known as “good

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time” or “good time credit” through “exemplary compliance with institutional disciplinary

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regulations.” See 18 U.S.C. § 3624(a)-(b). The First Step Act of 2018 (hereinafter “FSA”), Pub.

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L. 115-391, 132 Stat. 5194 (Dec. 21, 2018), reformed various aspects of the operation of federal

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prisons and, relevant here, mandated the creation a system of “earned time credits” distinct from

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the good time credit system. Under the earned time credit system, an eligible prisoner may earn

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credits toward early release when he or she “successfully completes evidence-based recidivism

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reduction programming or productive activities.” 18 U.S.C. § 3632(d)(4)(A).

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As part of the FSA, Congress directed BOP to, within 210 days of the FSA’s enactment,

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develop and then publicly release a “risk and needs assessment” to “review each prisoner’s

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recidivism risk level, award earned time credit as an incentive for participation in recidivism

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reduction programming, and determine when a prisoner is ready to transfer into prerelease

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custody or supervised release in accordance with section 3624.” Bottinelli v. Salazar, 929 F.3d

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1196, 1197-98 (9th Cir. 2019) (internal citation omitted); 18 U.S.C. § 3621(h)(2)(A)-(B).

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Congress further directed BOP to “complete the initial intake risk and needs assessment for each

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prisoner” by 180 days later. 18 U.S.C. § 3621(h)(1)(A).

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Petitioner’s full-term release date is August 6, 2022 and his “projected” release date is

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January 12, 2022. (ECF No. 9 at 2.) The parties agree petitioner is eligible to earn and apply for

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earned time credits. (ECF No. 1 at 20; ECF No. 9-1 at 8.) Petitioner alleges he has participated in

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activities to earn time credits at FCI-Herlong based on his case manager’s assurance that he was

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earning time credits for these activities. (ECF No. 1 at 19.) Petitioner alleges he has earned 12.5

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months of earned time credits. (Id. at 7.) Petitioner alleges he qualifies for sufficient earned time

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credits under the FSA to warrant immediate release to home confinement, halfway house or

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supervised release. (Id. at 3, 10.) Respondent asserts, in contrast, that in January of 2022, if

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petitioner has met other criteria for eligibility, he will then be eligible to have earned time credits

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under the FSA applied towards discretionary pre-release custody. (ECF No. 9 at 2.)

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The undersigned concludes, consistent with most district courts to consider the issue, that

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the petition is premature and unripe. 1 Federal courts are limited to deciding “cases” and

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“controversies.” U.S. CONST. art. III, § 2. One component of the “case or controversy”

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requirement is that a claim must be ripe for review. Bova v. City of Medford, 564 F.3d 1093,

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1095-96 (9th Cir. 2009). “[R]ipeness addresses when litigation may occur[,]” Lee v. Oregon, 107

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F.3d 1382, 1387 (9th Cir. 1997), and is “designed to ‘prevent the courts, through avoidance of

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premature adjudication, from entangling themselves in abstract disagreements,’” Thomas v.

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Because the undersigned finds the exhaustion and ripeness issues to be dispositive, the
undersigned declines to address respondent’s alternative arguments that the petition fails to state a
claim and that the court lacks jurisdiction to compel the BOP to take discretionary action.
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Anchorage Equal Rights Comm’n, 220 F.3d 1134, 1138 (9th Cir. 2000) (en banc) (citation

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omitted).

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Although petitioner states he has been earning time credits since the FSA was enacted on

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December 21, 2018, review of the legislation shows that the First Step Act allows BOP to phase

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in and gradually implement the earned time credits system. See 18 U.S.C. § 3621(h)(2)(A).

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Specifically, the Act requires BOP to provide evidence-based recidivism reduction activities for

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all prisoners before the two-year anniversary of the date that BOP completes a risk and needs

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assessment for each prisoner—namely, by January 15, 2022. Id. The statute requires during the

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phase-in period that BOP “develop and validate the risk and needs assessment tool to be used in

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the reassessments of risk of recidivism, while prisoners are participating in and completing

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evidence-based recidivism programs and productive activities.” Id. § 3621(h)(2)(B). But the

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statute does not explicitly require BOP to begin awarding earned time credits during the phase-in

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period. Instead, it provides, in pertinent part:

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(3) Priority during phase-in.--During the 2-year period described in
paragraph (2)(A), the priority for such programs and activities shall
be accorded based on a prisoner’s proximity to release date.
(4) Preliminary expansion of evidence-based recidivism reduction
programs and authority to use incentives.--Beginning on the date of
enactment of this subsection, the Bureau of Prisons may begin to
expand any evidence-based recidivism reduction programs and
productive activities that exist at a prison as of such date, and may
offer to prisoners who successfully participate in such programs and
activities the incentives and rewards described in subchapter D.
18 U.S.C.A. § 3621 (emphasis added).
As set forth in the petition, in Goodman v. Ortiz, No. 20-7582 (RMB), 2020 WL 5015613

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(D. N.J. Aug. 25, 2020), a New Jersey District Court found the plain language quoted above

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contemplated that prisoners would earn and receive the benefits of earned time credits during the

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two-year “phase-in” period. In Goodman, the petitioner asserted—and the respondent did not

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dispute—that all of the earned credits claimed by petitioner had been earned after passage of the

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FSA, were properly counted toward FSA earned credits, and that petitioner had successfully

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completed the programs. Id., 2020 WL 5015613, at *2. The BOP opposed the petition on the

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ground that Congress had granted it until January 15, 2022, to phase in the FSA program. Id. at
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*1. BOP argued that, even though the petitioner was entitled to the earned credits, and even

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though crediting petitioner with the earned FSA credits would result in his immediate release, the

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BOP nevertheless did not have to release him until January 15, 2022. Id. at *1, 3-6. The district

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court in Goodman granted habeas relief, indicating it would direct the BOP to immediately apply

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the 120 days of earned time credits the petitioner alleged he had accrued. Id., 2020 WL 5015613,

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at *5-6.

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Unlike in Goodman, in this case respondent asserts that because BOP has not completed

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its phase-in, the precise calculations for petitioner and amount of credits he can apply, as well as

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their precise application, are speculative. (ECF No. 9-1 at 8.) Moreover, as Goodman is

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persuasive and not precedential authority, this court is not bound to follow the decision. Most

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district courts to consider this issue of statutory construction have concluded BOP is not yet

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required to award earned time credits, and thus that section 2241 petitions seeking the award of

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such credits are premature and unripe at this time. See, e.g., Diaz v. FCI-Ray Brook, No. 9:21-cv-

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0738, 2021 WL 3032694, at *2 (N.D.N.Y. July 19, 2021); Matecki v. Thompson, No. 2:21-cv-

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0268, 2021 WL 2457691, at *3 (E.D. Cal. June 16, 2021), report and recommendation adopted,

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2021 WL 3206571, at *1 (E.D. Cal. July 29, 2021); Holt v. Warden; No. 4:20-cv-4064, 2021 WL

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1925503, at *5 (D.S.D. May 13, 2021); Cohen v. United States, No. 20-cv-10833, 2021 WL

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1549917 at *3 (S.D.N.Y. April 20, 2021); Fleming v. Joseph, No. 3:20-cv-5990, 2021 WL

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1669361, at *4-5; Kennedy-Robey v. FCI Pekin, No. 20-cv-1371, 2021 WL 797516, at *3-4

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(C.D. Ill. Mar. 2, 2021); Hand v. Barr, No. 1:20-cv-00348, 2021 WL 392445, at *5, report and

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recommendation adopted, 2021 WL 1853295 (E.D. Cal. May 10, 2021); Llewlyn v. Johns, No.

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5:20-CV-77, 2021 WL 535863, at *2 (S.D. Ga. Jan. 5, 2021), report and recommendation

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adopted, 2021 WL 307289 (S.D. Ga. Jan. 29, 2021).

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While the FSA mandated giving prisoners with impending release dates priority in

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participating in the programs and activities to earn these time credits, at this juncture the court has

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no way of knowing exactly how the BOP will actually calculate petitioner’s earned time credits.

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Therefore, the issue before the court is an abstract disagreement not ripe for adjudication because

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it hinges “upon contingent future events that may not occur as anticipated[.]” United States v.

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Streich, 560 F.3d 926, 931 (9th Cir. 2009).

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BOP is not yet required to provide earned time credits. Thus, there is no current basis for

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this court to conclude that the failure to provide such credits during the phase-in period is a

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violation of the FSA. The undersigned recommends the court dismiss the habeas petition without

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prejudice as premature and unripe.

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In accordance with the above, IT IS RECOMMENDED:

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1. Petitioner’s motion for preliminary injunction (ECF No. 2) be DENIED;

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2. Respondent’s motion to dismiss (ECF No. 9) be GRANTED;

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3. The petition for writ of habeas corpus under 28 U.S.C. § 2241 be dismissed without
prejudice; and

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4. The Clerk of the Court be directed to close this case.

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These findings and recommendations will be submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within thirty (30) days

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after being served with these findings and recommendations, any party may file written

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objections with the court and serve a copy on all parties. The document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections

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shall be served on all parties and filed with the court within seven (7) days after service of the

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objections. Failure to file objections within the specified time may waive the right to appeal the

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District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951

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F.2d 1153 (9th Cir. 1991).

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Dated: November 17, 2021

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