(HC) Rios v. Thompson

Filing 11

ORDER signed by Chief District Judge Kimberly J. Mueller on 1/7/2022 ADOPTING 10 Findings and Recommendations, GRANTING 7 Motion to Dismiss, and DISMISSING 1 Application for a Writ of Habeas without prejudice based on lack of ripeness. CASE CLOSED. (Huang, H)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MARCOS RIOS,

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No. 2:21-CV-01059-KJM-CKD
Petitioner,

v.

ORDER

PAUL THOMPSON,
Respondent.

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Petitioner, a federal prisoner proceeding pro se, has filed an application for a writ of

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habeas corpus under 28 U.S.C. § 2241. The matter was referred to a United States Magistrate

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Judge as provided by 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

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On October 29, 2021, the magistrate judge filed findings and recommendations, which

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were served on all parties and which contained notice to all parties that any objections to the

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findings and recommendations were to be filed within twenty-one days. Neither party has filed

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objections to the findings and recommendations.

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The court presumes that any findings of fact are correct. See Orand v. United States, 602

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F.2d 207, 208 (9th Cir. 1979). The magistrate judge’s conclusions of law are reviewed de novo.

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See Britt v. Simi Valley Unified School Dist., 708 F.2d 452, 454 (9th Cir. 1983). Having reviewed

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the file, the court finds the findings and recommendations to be supported by the record and by

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the magistrate judge’s analysis.
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Petitioner argues his claim is ripe because the First Step Act (“FSA”) requires the Bureau

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of Prisons to apply time credit prior to January 2022, the expiration of the two-year “phase-in”

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period set forth in 18 U.S.C. § 3621(h)(2). Petitioner relies on Goodman v. Ortiz, U.S. Dist.

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LEXIS 153874, 2020 WL 5015613 (D. N. Jersey August 25, 2020) to support his argument, but

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Goodman is distinguishable. In Goodman, the Bureau of Prisons did “not dispute that Petitioner

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earned the time credits.” Id. at *2. Here, the Bureau of Prisons declares that because the regulations

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governing earned time credits are only proposed, “the precise calculations for Petitioner and amount

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of credits he can apply, as well as their precise application to any community confinement placement,

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are speculative.” Pino Decl. ¶¶ 13, 21, ECF No. 7-1. For this reason, the court agrees with the

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findings and recommendation that petitioner’s claims in this case are not ripe. The court declines to

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interpret the FSA as rendering any claim regarding time credits unripe until the expiration of the

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FSA’s “phase-in” period.1

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Accordingly, IT IS HEREBY ORDERED that:

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1. The findings and recommendations filed October 29, 2021, are adopted.

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2. Respondent’s motion to dismiss (ECF No. 7) is granted.

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3. Petitioner’s application for a writ of habeas based on 28 U.S.C. § 2241 is dismissed

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without prejudice based on lack of ripeness.

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4. The Clerk of Court shall close this action.
DATED: January 7, 2022.

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In Sengchareun v. Thompson, No. 221CV00783KJMJDP, 2021 WL 4942781, at *1 (E.D. Cal.
Oct. 22, 2021), which involved similar facts and legal questions, this court resolved the narrow
question of reconsideration without reaching the merits of the issue addressed here.
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