Opinion
CV-24-00008-TUC-SHR (MAA)
04-26-2024
Juan David Bruce-Pino, Petitioner, v. FCI Safford Low Warden, Respondent.
REPORT AND RECOMMENDATION
Honorable Michael A. Ambri, United States Magistrate Judge
On January 3, 2024, the petitioner, an inmate confined in the Federal Correctional Institution in Safford, AZ, filed a Petition for Writ of Habeas Corpus pursuant to Title 28, United States Code, Section 2241. Doc. 1. The petitioner, Juan David Bruce-Pino, claims (1) the Bureau of Prisons (BOP) is improperly withholding his earned time credits under the First Step Act (FSA), and (2) he is entitled to “immigration process” because he provided “substantial assistance” to the government. Doc. 3, pp. 1-2.
Pursuant to the Rules of Practice of this Court, this matter was referred to the Magistrate Judge for Report and Recommendation. Doc. 3.
The petition should be denied. Bruce-Pino is not entitled to First Step Act time credits because he did not participate in the Inmate Financial Responsibility Program (IFRP). His “substantial assistance” issue is not cognizable in a Section 2241 proceeding.
Background
A federal prisoner may file a petition pursuant to 28 U.S.C. § 2241 when challenging the “manner, location, or conditions of a sentence's execution.” Hernandez v. Campbell, 204 F.3d 861, 864 (9th Cir. 2000). When filing such a petition, “the prisoner must name the warden of the penitentiary where he is confined as a respondent.” Johnson v. Reilly, 349 F.3d 1149, 1153 (9th Cir. 2003). This requirement follows naturally because the warden has custody over the petitioner and is primarily responsible for the execution of his sentence. The petitioner in this case named as respondent the warden of his penitentiary.
The petitioner asserts in his first ground for relief that the “BOP is not crediting my earning time credits granted by the FSA (earning time credits) due to an immigration detainer all in violation of law (First Step Act of 2018).” Doc. 1, p. 2. He argues that he “should be released by July of 2023.” Doc. 1, p. 7.
In his Answer, the respondent concedes that the petitioner has received no time credits under the First Step Act (FSA) but explains that this is because he did not agree to participate in the Inmate Financial Responsibility Program (IFRP). Doc. 9. The petitioner has since agreed to participate in the IFRP as indicated by a signed plan agreement, which was attached as an exhibit to the Answer. Doc. 9-1, p. 7. The signed agreement is dated January 30, 2024, which is 27 days after the pending Petition was filed in this court. Id.
Under its Inmate Financial Responsibility Program (IFRP), the BOP “encourages each sentenced inmate to meet his or her legitimate financial obligations.” 28 C.F.R. § 545.10. To this end, the BOP monitors each prisoner's resources and financial obligations and “assist[s] the inmate in developing a financial plan for meeting those obligations. . . .” 28 C.F.R. § 545.10.
The respondent notifies the court that the petitioner was released from BOP custody on February 2, 2024 after his sentencing court “granted him a sentence reduction on unrelated grounds.” Doc. 9, p. 2. The respondent argues that this case is now moot.
The petitioner, Bruce-Pino, did not file a reply.
Discussion
“Under the FSA, an eligible inmate shall earn 10 days of time credits for every 30 days of successful participation in evidence-based recidivism reduction programming or productive activities.” Martinez v. Gutierrez, No. CV-22-00505-TUC-RM-AMM, 2023 WL 6466490, at *3 (D. Ariz. July 14, 2023) (citing 18 U.S.C. § 3632(d)(4)), report and recommendation adopted, 2023 WL 6464850 (D. Ariz. Oct. 4, 2023). “Earned time credits can be applied to prerelease custody or supervised release if an inmate has shown through the periodic risk reassessments a demonstrated recidivism risk reduction or has maintained a minimum or low recidivism risk, during the prisoner's term of imprisonment.” Id. (punctuation modified) (citing 18 U.S.C. § 3624(g)(1)(B)). The Regulations further explain that FSA time credits do not apply to an inmate “[s]ubject to a final order of removal under immigration laws as defined by 8 U.S.C. 1101(a)(17). . . .” 28 C.F.R. § 523.44(a)(2).
Bruce-Pino asserts in his Petition that “he has earned [a] substantial amount of First Step Act (‘FSA') earned time credit (‘ETC') 18 U.S.C. 3624(a)(4), which has been denied by the BOP claiming petitioner is ineligible due to a final deportation or removal order which is false; petitioner does not have a final deportation or removal order.” Doc. 1, p. 6 (punctuation modified). Assuming arguendo that the petitioner is correct and he does not have a final deportation or removal order, his claim should still be denied. Bruce-Pino has not earned any FSA time credits because until recently he was not participating in the Inmate Financial Responsibility Program (IFRP).
An inmate earns FSA time credits only if he participates in “evidence-based recidivism reduction programming or productive activities.” 18 U.S.C. § 3632(d)(4). The BOP considers the Inmate Financial Responsibility Program (IFRP) to be an indispensable part of its recidivism reduction programming and will not give an inmate FSA Time Credits if he fails to participate in that program. See Doc. 9-1, p. 3, ¶ 4. The petitioner here refused to participate in the IFRP, and that is why the BOP denied him FSA time credits. See Doc. 9-1, p. 3, ¶ 5. The petitioner has since agreed to participate in the IFRP and signed the agreement on January 30, 2024. Id. He was, however, released from BOP custody three days later on February 2, 2024. Doc. 9-1, p. 3, ¶ 6. Accordingly, he has not successfully participated in the IFRP for 30 days and has not accrued any FSA time credits. 18 U.S.C. § 3632(d)(4). Bruce-Pino's claim for FSA time credits should be denied.
The respondent further argues that this issue is now moot because the petitioner is no longer in BOP custody. The court is not convinced. If the court found that the petitioner was entitled to FSA time credits, it might be possible to apply those credits to his term of supervised release retroactively. See Marler v. Derr, 2023 WL 2563147, at *6 (D. Haw. Mar. 17, 2023) (“[R]etroactive application of FSA time credits toward early home confinement appears to be well within the BOP's discretion.”); but see Zimmer v. Marske, 2022 WL 4016623, at *1 (W.D. Wis. Sept. 2, 2022) (“But I cannot use the earned-time credit that the BOP allegedly unlawfully failed to give Zimmer before his release to reduce his term of supervised release retroactively.”). The court does not find that the issue is moot.
Immigration Claim
Bruce-Pino further argues that he “should be allowed to have his immigration process permmited [sic] as petitioner cooperated with the United States Government and provided substantial assistance to the government and petitioner may be requesting relief from immigration due to safety risks if he is deported or removed.” Doc. 1, p. 6.
It is not entirely certain what Bruce-Pino is seeking here, but it seems clear that the respondent, the warden of FCI Safford Low, has no control over the petitioner's future immigration process and can provide no relief in this area. This claim does not challenge the “manner, location, or conditions of a sentence's execution.” Hernandez v. Campbell, 204 F.3d 861, 864 (9th Cir. 2000). This ground for relief is not cognizable. See, e.g., Whitaker v. Dunbar, 83 F.Supp.3d 663, 668 (E.D. N.C. 2014) (“As for Whitaker's claim under Rule 35 [for a sentence reduction because of ‘substantial assistance'], the claim is not cognizable in a section 2241 petition.”); Estep v. Shartle, 2016 WL 1554151, at *2 (D. Ariz. Jan. 14, 2016) (Where the petitioner claimed that the Office of Personnel Management was improperly sending the petitioner's annuity payment directly to the U.S. Clerk's office to pay his restitution obligations, the court held that the claim was not cognizable in a section 2241 proceeding and noted that “[t]he respondent, Warden Shartle, can do nothing about that.”), report and recommendation adopted, No. CV-15-00443-TUC-RM, 2016 WL 1535679 (D. Ariz. Apr. 15, 2016).
RECOMMENDATION
The Magistrate Judge recommends that the District Court, after its independent review of the record, enter an order denying the petition. Doc. 1. The petitioner is not entitled to First Step Act time credits because he did not participate in the Inmate Financial Responsibility Program (IFRP).
Pursuant to 28 U.S.C. §636 (b), any party may serve and file written objections within 14 days of being served with a copy of this Report and Recommendation. If objections are not timely filed, they may be deemed waived. The Local Rules permit a response to an objection. They do not permit a reply to a response without the permission of the District Court.