Opinion
CV 23-01979-PHX-DJH (ASB)
07-03-2024
Omil Cotto, Petitioner, v. Russell Hetsner, Respondent.
REPORT AND RECOMMENDATION
Honorable Alison S. Bachus United States Magistrate Judge
TO THE HONORABLE DIANE J. HUMETEWA, UNITED STATES DISTRICT JUDGE:
Pending before the Court is Petitioner Omil Cotto's pro se Petition for a Writ of Habeas Corpus Under 28 U.S.C. § 2241 (Doc. 1). The Petition indicated on page 1 that is based on the “First Step/Cares Act.” (Id.) Petitioner is in the custody of the Federal Bureau of Prisons (“BOP”). In an Order filed on April 3, 2024, the Court reviewed the Petition and directed Respondent to file an Answer to the First Step Act claim. (Doc. 4.) Respondent timely filed an Answer to the Petition for Writ of Habeas Corpus and included therein a request to dismiss the matter. (Doc. 8.) No reply was filed by Petitioner. For the reasons that follow, the undersigned recommends the Petition for Writ of Habeas Corpus be denied and dismissed.
I. BACKGROUND
Petitioner is serving a sentence of 180 months' imprisonment for a conviction in the United States District Court for District of New Mexico for Possession with Intent to Distribute 50 Grams or More of Methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and Using and Carrying a Firearm During and in Relation to a Drug Trafficking Crime, and Possessing a Firearm in Furtherance of Such Crime, in violation of 18 U.S.C. § 924(c). (Doc. 8-1, Att. B at 20-21.) He is incarcerated at the Federal Correctional Institution-Phoenix (“FCI-Phoenix”). (Id. at 19.)
In his Petition, Petitioner argues that he was incarcerated in his cell during the COVID-19 pandemic and despite Congress mandating that “inmates get credits for being locked down” as “programming,” Petitioner was not awarded that time. (Doc. 1 at 4.) Petitioner asserts, “BOP has not given me my credits yet and time is running out.” (Id.) Petitioner cites the “First Step/Cares act” on page 1 of his Petition, without providing further support. (See id. at 1-9.) Petitioner fails to identify what remedy he seeks. (See id.) Finally, Petitioner states he was unable to follow the administrative remedy procedure for the Federal Bureau of Prisons, because BOP staff did not return his paperwork to him. (Id. at 4.)
In opposition, Respondentargues Petitioner is ineligible for First Step Act credits because he was convicted of violating 18 U.S.C. § 924(c). (Doc. 8 at 5-6.) Respondent further contends this Court lacks subject matter jurisdiction pursuant to 18 U.S.C. § 3625 and lacks authority to compel discretionary action by BOP. (Id. at 9-12.) Respondent also avers Petitioner failed to exhaust his administrative remedies and lacks a liberty interest in his First Time Act credits. (Id. at 7-9, 12-13.)
Petitioner named Respondent as Warden “Russell Hetsner.” (Doc. 1.) In his Answer, however, Respondent advised the properly named Respondent should be FCI-Phoenix's Warden J. Gunther, as Warden Gunther is serving as warden of that institution. The Court will direct the Clerk of Court to make that substitution.
II. DISCUSSION
Writ of habeas corpus relief extends a person in federal custody if the federal prisoner can demonstrate he “is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241(c)(3). A federal prisoner may seek a writ of habeas corpus to challenge the manner of the execution of his sentence pursuant to 28 U.S.C. § 2241. Hernandez v. Campbell, 204 F.3d 861, 864 (9th Cir. 2000); Tucker v. Carlson, 925 F.3d 330, 331 (9th Cir. 1990) (challenges to the execution of a sentence are “maintainable only in a petition for habeas corpus filed pursuant to 28 U.S.C. § 2241”); see also United States v. Giddings, 740 F.2d 770, 772 (9th Cir. 1984) (holding that a petitioner may challenge the execution of a sentence by bringing a petition under 28 U.S.C. § 2241). Petitioner challenges the execution of his sentence.
A. Subject Matter Jurisdiction
“Federal courts are always ‘under an independent obligation to examine their own jurisdiction,' ... and a federal court may not entertain an action over which it has no jurisdiction.” Hernandez v. Campbell, 204 F.3d 861, 865 (9th Cir. 2000) (quoting FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 231 (1990)). To determine the issue of subject matter jurisdiction, the Court considers the relevant statutory scheme and controlling case law.
Based on the scant information provided by Petitioner and his reference to the First Step Act, the Court construes Petitioner's argument as one that BOP has failed to apply First Step Act credits towards his earned time credit calculation. The First Step Act (“FSA”), enacted in 2018, included an amendment to 18 U.S.C. § 3624 concerning the FSA's creation of an earned time credit system. Bottinelli v. Salazar, 929 F.3d 1196, 1197 (9th Cir. 2019). The FSA added subsection (g) to 18 U.S.C. § 3624 for that purpose; § 3624(g) “details the criteria for when a prisoner becomes eligible, considering earned time credit, for transfer to prerelease custody or supervised release.” Id. at 1198. Thus, FSA credits operate to make a prisoner eligible for an earlier release date.
At the outset, the Court notes that Petitioner is statutorily ineligible to receive credits under the First Step Act because he is serving a sentence for a conviction of 18 U.S.C. § 924(c). See 18 U.S.C. § 3632(d)(4)(D)(xxii) (identifying prisoners serving sentences on § 924(c) convictions as being “ineligible” to receive credits under the First Step Act). However, even assuming arguendo that Petitioner would be eligible, the Court lacks subject matter jurisdiction.
Persons who “suffer[] legal wrong because of agency action” may generally seek judicial review of the agency action, unless another statute provides otherwise. Reeb v. Thomas, 636 F.3d 1224, 1226 (9th Cir. 2011) (quoting 5 U.S.C. § 702). In Reeb, the Ninth Circuit considered the effect of 18 U.S.C. § 3625 on a prisoner's ability to challenge a discretionary determination made by BOP under 18 U.S.C. § 3621 through a petition for habeas corpus under 28 U.S.C. § 2241. The Circuit observed that 18 U.S.C. § 3625 specifically states judicial review under the Administrative Procedures Act (5 U.S.C. §§ 701-706) does not apply to “‘any determination, decision, or order' made pursuant to 18 U.S.C. §§ 3621-3624.” Id. at 1227. The Reeb court continued, “A habeas claim cannot be sustained based solely upon the BOP's purported violation of its own program statement because noncompliance with a BOP program statement is not a violation of federal law.” Id. (citing Jacks v. Crabtree, 114 F.3d 983, 985 n. 1 (9th Cir. 1997) and Reno v. Koray, 515 U.S. 50, 61 (1995)). Reeb held that when a prisoner's “habeas petition alleges only that the BOP erred in his particular case,” the district court lacks jurisdiction to adjudicate the merits of that petition. Id. at 1228-29. However, when a habeas petition alleges “that BOP action is contrary to established federal law, violates the United States Constitution, or exceeds its statutory authority,” judicial review “remains available.” Id. at 1228.
Thus, under Reeb, this Court considers Petitioner's specific challenge in his instant Petition. 636 F.3d at 1228-29. Petitioner alleges in his Petition that Congress “mandated that inmates get for being locked down” during the pandemic and BOP has failed to give him credits for the time he spent in his cell. (Doc. 1 at 4.) He alleges that “they” (presumably Congress, but it is unclear) “say it[']s programming.” (Id.) Thus, and without citing to any support, Petitioner appears to argue the time he spent in lockdown equates to programming under the First Step Act. In making this claim, Petitioner contends BOP has failed to apply First Step Act credits to his particular sentence. In making this argument, Petitioner disregards his ineligibility to receive the credits because he is serving a sentence on a conviction for 18 U.S.C. § 924(c). See 18 U.S.C. § 3632(d)(4)(D)(xxii). Second, even if BOP could somehow apply the credits to Petitioner's sentence, the decision as to whether to apply the credits would be a discretionary, individualized determination under 18 U.S.C. § 3624. The Ninth Circuit has held that the courts lack subject matter jurisdiction over such habeas petitions. Reeb, 636 F.3d at 1228-29; see also Mohsen v. Graber, 583 Fed. App'x. 841, 842 (9th Cir. 2014) (concluding Reeb foreclosed exercise of jurisdiction over an individualized consideration under 18 U.S.C. § 3621) and Acosta v. Hudson, No. CV-23-01909-PHX-JAT, 2023 WL 6979463, *2 (D. Ariz. Oct. 23, 2023) (“To the extent that Petitioner asserts he is entitled to good time credit under the First Step Act, nothing in the First Step Act entitles Petitioner to good time credit for being incarcerated during the COVID-19 pandemic.”). Accordingly, the Court will recommend to the District Judge that the Petition, to the extent it is based on the First Step Act, be dismissed for lack of subject matter jurisdiction.
B. Offense of Conviction, Lack of Liberty Interest, Lack of Judicial Authority to Compel Discretionary Agency Action
Because the Court has concluded it lacks subject matter jurisdiction, it need not reach Respondent's additional arguments. However, the Court will briefly address them. Respondent argues that Petitioner lacks a liberty interest in First Time Act credits and that this Court cannot compel BOP to exercise its discretion in a certain manner. (Doc. 8 at 1013.) Respondent further contends Petitioner is not eligible to receive First Step Act credits because he is serving a sentence for a violation of 18 U.S.C. § 924(c). (Id. at 5-6.) The Court agrees.
The Court first discusses the non-discretionary aspect of Respondent's argument; that is, Petitioner is statutorily ineligible to receive First Step Act time credits because he is serving a sentence for 18 U.S.C. § 924(c). Specifically, 18 U.S.C. § 3632 governs the application of credits under the First Step Act, and 18 U.S.C. § 3632(d)(4)(D) states, “A prisoner is ineligible to receive time credits under this paragraph if the prisoner is serving a sentence for a conviction under any of the following provisions of law.” One of those enumerated crimes is “Section 924(c), relating to unlawful possession or use of a firearm during and in relation to any crime of violence or drug trafficking crime.” 18 U.S.C. § 3632(d)(4)(D)(xxii). Therefore, as mentioned supra in this Report and Recommendation, and by operation of statute, Petitioner is ineligible to receive credits under the First Step Act.
Due to Petitioner's obvious and clear ineligibility to receive First Step Act time credits, the Court's analysis could end there. The Court, however, will briefly discuss the application of the First Step Act to Petitioner, assuming arguendo that BOP would somehow have discretion to apply the credits to him (which it does not, by virtue of 18 U.S.C. § 3632(d)(4)(D)(xxii)).
As the Court has discussed above, 18 U.S.C. § 3624 confers upon BOP the discretion as to whether to release a prisoner to supervised release or place that prisoner in release custody, and whether to grant Petitioner credits towards same. “[T]he failure to receive relief that is purely discretionary in nature does not amount to a deprivation of a liberty interest.” Mejia Rodriguez v. Reno, 178 F.3d 1139, 1146 (11th Cir. 1999) (citing Conn. Bd. of Pardons v. Dumschat, 452 U.S. 458, 465 (1981)); see Olim v. Wakinekoma, 461 U.S. 238, 249 (1983) (no liberty interest created when government action is discretionary by statute); see also Greenholtz v. Inmates of Neb. Penal and Corr. Complex, 442 U.S. 1, 7 (1979) (“There is no constitutional or inherent right of a convicted person to be conditionally released before the expiration of a valid sentence.”). Similarly, the Court cannot compel BOP to take an action that is singularly within BOP's statutory discretion for the same principled reasons. The First Step Act confers with BOP, not the courts, the sole discretion to determine and apply credits that may result in transfer to prerelease custody or supervised release. See, e.g., 18 U.S.C. §§ 3621, 3624 (vesting authority for determination of credits towards release and place of confinement with BOP). Therefore, even if BOP could apply First Step Act credits to Petitioner (which it cannot, because of 18 U.S.C. § 3632(d)(4)(D)(xxii)), and BOP elected not to do so, the Court lacks authority to encroach upon BOP's sole, statutory discretion as to whether to apply the credits to Petitioner.
C. CARES Act
On page 1 of his Petition, Petitioner states he brings his Petition under the “First Step/Cares act.” (Doc. 1 at 1.) Although Petitioner fails to develop any argument or claim under the latter law, and he does not ask for any specific relief (see id. at 1-9), the Court assumes Petitioner refers to the Coronavirus Aid, Relief, and Economic Security Act (the “CARES Act”). The CARES Act, however, is equally unavailing to Petitioner.
The CARES Act provided some authority to BOP to “lengthen the maximum amount of time” for which a prisoner could be placed on home confinement, but that authority was limited to “the covered emergency period.” CARES Act, Pub. L. 116-136, Div. B, Title II, § 12003(b)(2). Specifically, the BOP's authority expired “30 days after the date on which the national emergency declaration terminate[d].” Id. § 12003(a)(2). The federal COVID-19 Public Health Emergency declaration terminated on May 11, 2023. Dep't of Health and Human Services, COVID-19 Public Health Emergency, https://www.hhs.gov/coronavirus/covid-19-public-health-emergency/index.html (last visited July 3, 2024). Thus, the CARES Act provides no avenue for relief to Petitioner and the Petition, to the extent it is based on that law, must be denied.
D. Exhaustion
In Reeb, the Ninth Circuit observed that “[t]he BOP's Administrative Remedy Program, set forth at 28 C.F.R. §§ 542.10-19, provides a vehicle for aggrieved inmates to challenge such discretionary BOP determinations.” 636 F.3d at 1227. A federal prisoner must exhaust his administrative remedies through the Bureau of Prisons before filing a § 2241 petition. Fraley v. U.S. Bureau of Prisons, 1 F.3d 924, 925 (9th Cir. 1993). “When a petitioner does not exhaust administrative remedies, a district court ordinarily should either dismiss the petition without prejudice or stay the proceedings until the petitioner has exhausted remedies, unless exhaustion is excused.” Leonardo v. Crawford, 646 F.3d 1157, 1160 (9th Cir. 2011) (internal citations omitted). A prisoner exhausts his administrative remedies by pursuing his claim in the Bureau of Prisons' four-tier process set forth at 28 C.F.R. §§ 542.10 et seq: first, the inmate must pursue the issue informally with institution staff (known as a BP-8); if unsuccessful at the first stage, the inmate must formally raise the issue with the warden (known as a BP-9); if unsuccessful with the second step, the inmate must bring the issue to the attention of the Regional Director (known as a BP-10); and finally, if unsuccessful at the regional level, the inmate must appeal to the Bureau of Prisons' General Counsel in Washington, D.C. (known as a BP-11).
With respect to administrative remedies, Petitioner indicates in his Petition as follows: “I could not do all my administrative remedies because the unit team didn't give me back my BP[-]8, I can not (sic) turn in the BP[-]9 without the [BP-]8.” (Doc. 1 at 4.) Petitioner failed to provide any further information, such as a date of when he submitted his BP-8 to the institution, or whether he followed up after allegedly receiving no response from his unit team. (See Doc. 1 at 1-9.) Respondent's Answer indicates Petitioner has filed at least two administrative remedies and utilized the appeals process, including while at FCI-Phoenix. (Doc. 8-1, Exh. A, Att. 1.) None of those administrative remedies concerned the First Step Act or the CARES Act. (See id.) (showing remedies concerned staff handling of an assault and Petitioner's prescription medications). Whether Petitioner was prevented from exhausting his administrative remedies as to the issue raised in his Petition need not be resolved because the Petition should be dismissed for the reasons set forth above.
E. Conclusion
For the reasons set forth above, Petitioner is statutorily ineligible to receive credits under the First Step Act, and even if he were, the Court lacks subject matter jurisdiction to consider BOP's discretionary application of the First Step Act's time credits. The CARES Act time has expired. Petitioner is not eligible for relief under the First Step Act or the CARES Act. Accordingly, the undersigned will recommend that the Petition for Writ of Habeas Corpus (Doc. 1) be denied and dismissed.
RECOMMENDATION
IT IS RECOMMENDED that the Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 (Doc. 1) be DENIED and DISMISSED WITH PREJUDICE.
EFFECT OF RECOMMENDATION
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment. The parties shall have 14 days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(b) and 72. Thereafter, the parties have 14 days within which to file a response to the objections.
Failure to timely file objections to the Magistrate Judge's Report and Recommendation may result in the acceptance of the Report and Recommendation by the district court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure to timely file objections to any factual determinations of the Magistrate Judge will be considered a waiver of a party's right to appellate review of the findings of fact in an order of judgment entered pursuant to the Magistrate Judge's recommendation. See Fed.R.Civ.P. 72.
ORDER
IT IS ORDERED directing the Clerk of Court to substitute Warden J. Gunther as Respondent in this matter.