(HC) Castellon v. Warden

Filing 10

ORDER signed by Magistrate Judge Jeremy D. Peterson on 6/5/2024 ASSIGNING This Action to U.S. District Judge Troy L. Nunley and Magistrate Judge Jeremy D. Peterson for all further proceedings. The New Case Number is: 2:23-cv-01408-TLN-JDP. Petitioner 's request for judicial notice, 9 , is DENIED. IT IS FURTHER RECOMMENDED that Motion to Dismiss 6 be granted and the petition be dismissed; Petitioner's Motion for Summary Judgment 7 be denied. These Findings and Recommendations are submitted U.S. District Judge Troy L. Nunley. Objections to these F&Rs due within fourteen days. (Mena-Sanchez, L)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JAVIER PONCE CASTELLON,

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Petitioner,
v.

Case No. 2:23-cv-01408-JDP (HC)
ORDER
THAT THE CLERK OF COURT ASSIGN A
DISTRICT JUDGE TO THIS CASE AND
DENYING PETITIONER’S REQUEST FOR
JUDICIAL NOTICE

WARDEN,
Respondent.

ECF No. 9
FINDINGS AND RECOMMENDATIONS

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THAT RESPONDENT’S MOTION TO
DISMISS BE GRANTED AND
PETITIONER’S MOTION FOR SUMMARY
JUDGMENT BE DENIED

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ECF Nos. 6 & 7

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OBJECTIONS DUE WITHIN FOURTEEN
DAYS

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Petitioner Javier Ponce Castellon, a federal prisoner, filed a petition for a writ of habeas

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corpus under 28 U.S.C. § 2241, arguing that the Bureau of Prisons (“BOP”) has failed to properly

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apply credits he earned under the First Step Act (“FSA”). Respondent has moved to dismiss the

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petition as moot, arguing that all credits to which petitioner is entitled have been applied and the

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action no longer presents a case or controversy. ECF No. 6. Petitioner has filed both an

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opposition, ECF No. 8, his own motion for summary judgment, ECF No. 7, and a request for
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judicial notice, ECF No. 9. I recommend, for the reasons stated hereafter, that respondent’s

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motion to dismiss be granted and plaintiff’s motion for summary judgment be denied. I will deny

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petitioner’s request for judicial notice.

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

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

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provided for in the rules but must be inferred from their structure and the Advisory Committee

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Notes.”). The Ninth Circuit construes a motion to dismiss a habeas petition as a request for the

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court to dismiss under Rule 4 of the Rules Governing § 2254 Cases. See O’Bremski v. Maass,

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915 F.2d 418, 420 (9th Cir. 1991). Under Rule 4, I evaluate whether it “plainly appears” that the

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petitioner is not entitled to relief and, if so, recommend dismissal of the petition. Rule 4 is

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applicable to petitions proceeding under § 2241, like the one at bar.

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Respondent argues that, since the petition was filed, petitioner has been credited with all

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credits he is owed under the FSA. ECF No. 6 at 3. Specifically, respondent shows that petitioner

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received 365 days of credits. ECF No. 6-1 at 7. In his opposition, petitioner acknowledges that

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he received these credits, but contends that he is entitled to further relief, namely placement in a

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halfway house. ECF No. 8 at 2. He points out that, in the attachments to respondent’s motion to

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dismiss, an affidavit from a BOP and Department of Justice paralegal indicates that he has earned

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490 days of “FTC” credits that may be applied towards community placement. Id. at 2; ECF No.

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6-1 at 5.

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As an initial matter, placement in a halfway house was not a form of relief raised in the

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operative petition. Therein, petitioner requested only that the BOP be ordered to apply his credits

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in accordance with the FSA and that his release date be recalculated to reflect those credits. ECF

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No. 1 at 3. Second, the designation of place of imprisonment is left to the discretion of the BOP

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and is not reviewable by this court. See 18 U.S.C. § 3621(b) (“Notwithstanding any other

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provision of law, a designation of a placement of imprisonment under this subsection is not

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reviewable by any court.”). Other courts have found that the FSA does nothing to modify the

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discretion afforded the BOP on placement in either a halfway house or home confinement. See

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Mars v. Heisner, No. CV-22-01933-PHX-SPL (JZB), 2023 U.S. Dist. LEXIS 135880, *15 (D.
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Ariz. Jun. 26, 2023) (“Whether to permit an inmate to complete the end-phase of their sentence

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outside of formal prison custody is a matter of discretion left to the BOP. . . . And although

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application of an inmates FSA FTCs may effectively move up the date that inmate is eligible to

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be considered for prerelease custody, application of those FTCs do not compel the BOP to allow

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that inmate to participate in prerelease custody.”). Accordingly, I find that there is no further

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relief to which petitioner is entitled in this action. In so finding, I necessarily recommend his

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motion for summary judgment be denied.1

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Finally, in a recently filed request for judicial notice, petitioner argues that his projected

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release date has been postponed because he has a final order of removal. ECF No. 9 at 2. That

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order of removal is attached to his request for judicial notice. Id. at 7. He asks that I order the

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BOP to reinstate his original release date. Id. at 2. This request, however, is beyond the scope of

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this action. Petitioner’s argument appears to be that he should not be subject to a final order of

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removal because he has not been previously deported. Id. Whether petitioner is subject to a final

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order of removal or deportable is beyond the scope of this action, and I cannot order the executive

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to ignore those issues in calculating petitioner’s credits. It may be, as petitioner argues, that he

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should not be under a final order of removal, but that challenge must be brought separately, likely

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in Immigration Court. Accordingly, his request for judicial notice is denied.

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It is ORDERED that:

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The Clerk of Court shall assign a district judge to this action.

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2.

Petitioner’s request for judicial notice, ECF No. 9, is DENIED.

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Further, it is recommended that:

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1.

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Respondent’s motion to dismiss, ECF No. 6, be GRANTED and the petition be

DISMISSED.
2. Petitioner’s motion for summary judgment, ECF No. 7, be DENIED.

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I note that the motion for summary judgment consists of little more than petitioner’s
assertion that he did not receive respondent’s response to his petition. ECF No. 7 at 1. Given that
he has filed an opposition to the motion to dismiss, that issue is resolved.
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These findings and recommendations are 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 fourteen 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. Such a document should be captioned

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

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objections shall be served and filed within fourteen days after service of the objections. The

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parties are advised that failure to file objections within the specified time may waive the right to

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

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v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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IT IS SO ORDERED.

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Dated:

June 5, 2024
JEREMY D. PETERSON
UNITED STATES MAGISTRATE JUDGE

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