(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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MARCOS RIOS, 12 13 14 15 No. 2:21-CV-01059-KJM-CKD Petitioner, v. ORDER PAUL THOMPSON, Respondent. 16 17 Petitioner, a federal prisoner proceeding pro se, has filed an application for a writ of 18 habeas corpus under 28 U.S.C. § 2241. The matter was referred to a United States Magistrate 19 Judge as provided by 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 On October 29, 2021, the magistrate judge filed findings and recommendations, which 21 were served on all parties and which contained notice to all parties that any objections to the 22 findings and recommendations were to be filed within twenty-one days. Neither party has filed 23 objections to the findings and recommendations. 24 The court presumes that any findings of fact are correct. See Orand v. United States, 602 25 F.2d 207, 208 (9th Cir. 1979). The magistrate judge’s conclusions of law are reviewed de novo. 26 See Britt v. Simi Valley Unified School Dist., 708 F.2d 452, 454 (9th Cir. 1983). Having reviewed 27 the file, the court finds the findings and recommendations to be supported by the record and by 28 the magistrate judge’s analysis. 1 1 Petitioner argues his claim is ripe because the First Step Act (“FSA”) requires the Bureau 2 of Prisons to apply time credit prior to January 2022, the expiration of the two-year “phase-in” 3 period set forth in 18 U.S.C. § 3621(h)(2). Petitioner relies on Goodman v. Ortiz, U.S. Dist. 4 LEXIS 153874, 2020 WL 5015613 (D. N. Jersey August 25, 2020) to support his argument, but 5 Goodman is distinguishable. In Goodman, the Bureau of Prisons did “not dispute that Petitioner 6 earned the time credits.” Id. at *2. Here, the Bureau of Prisons declares that because the regulations 7 governing earned time credits are only proposed, “the precise calculations for Petitioner and amount 8 of credits he can apply, as well as their precise application to any community confinement placement, 9 are speculative.” Pino Decl. ¶¶ 13, 21, ECF No. 7-1. For this reason, the court agrees with the 10 findings and recommendation that petitioner’s claims in this case are not ripe. The court declines to 11 interpret the FSA as rendering any claim regarding time credits unripe until the expiration of the 12 FSA’s “phase-in” period.1 13 Accordingly, IT IS HEREBY ORDERED that: 14 1. The findings and recommendations filed October 29, 2021, are adopted. 15 2. Respondent’s motion to dismiss (ECF No. 7) is granted. 16 3. Petitioner’s application for a writ of habeas based on 28 U.S.C. § 2241 is dismissed 17 without prejudice based on lack of ripeness. 18 19 4. The Clerk of Court shall close this action. DATED: January 7, 2022. 20 21 22 23 24 25 26 27 28 1 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. 2

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