Summary
In Porche v. Salazar, 2019 U.S. Dist. LEXIS 51839, 2019 WL 1373683, *1 (D. Ore. March 5, 2019), that court found the BOP's denial of petitioner's transfer request unreviewable based on language in the First Step Act of 2018 specifying that BOP's "'designation of a place of imprisonment... is not reviewable by any court.'"
Summary of this case from Gonzalez v. YatesOpinion
Case No. 3:19-cv-00077-MK
03-05-2019
JOSEPH RUDOLPH PORCHE, Petitioner, v. JOSIAS SALAZAR, WARDEN, Respondent.
FINDINGS AND RECOMMENDATION :
Petitioner, an inmate at the Federal Prison Camp (FPC) in Sheridan, Oregon, files this petition pursuant to 28 U.S.C. § 2241 and seeks an order requiring the Bureau of Prisons (BOP) to consider his request for transfer to a facility within 500 miles of his place of release in Henderson, Nevada. Petitioner's designation by the BOP is not subject to judicial review, and the petition should be denied.
DISCUSSION
Petitioner was convicted of wire fraud and sentenced to a 41-month term of imprisonment. Pet. at 1 (ECF No. 1). In April 2018, petitioner self-surrendered at FPC Sheridan after requesting that he be designated to serve his sentence at a Sheridan facility. Petitioner subsequently learned that FPC Sheridan did not offer a program in which he wanted to participate, and he requested a transfer to a different facility. Id. at 3. Petitioner's case manager denied the request and informed petitioner that he must serve eighteen months with no disciplinary infractions before requesting a transfer. Petitioner sought administrative review and his case manager's decision was upheld. Id.
On December 21, 2018, the First Step Act became effective. Under this Act,
The Bureau [of Prisons] shall, subject to consideration of the factors described [above] and the prisoner's preference for staying at his or her current facility or being transferred, transfer prisoners to facilities that are closer to the prisoner's primary residence even if the prisoner is already in a facility within 500 driving miles of that residence.See 18 U.S.C. § 3621(b). Based on this provision of the Act, petitioner again asked his case manager if he could be transferred to a facility closer to his release address. His case manager allegedly denied his request, stating that the BOP had not yet made changes to its policies pursuant to the First Step Act. Pet. at 2, 4. Petitioner did not seek further administrative review.
On January 13, 2019, petitioner signed his § 2241 petition. He claims that the BOP has refused to re-designate his facility under the First Step Act, and that the BOP's refusal is reviewable by this Court. Petitioner is incorrect.
First, petitioner has not exhausted his administrative remedies. "As a prudential matter, courts require that habeas petitioners exhaust all available judicial and administrative remedies before seeking relief under § 2241." Ward v. Chavez, 678 F.3d 1042, 1045 (9th Cir. 2012). The exhaustion requirement is not jurisdictional, and it may be waived if pursuing administrative remedies would be futile. Id. After his case manager refused to reconsider his designation under the First Step Act, petitioner did not seek further administrative review and instead filed a federal petition. This, petitioner did not exhaust his administrative remedies and he fails to show that such remedies would be futile.
Second, the cited provision of the First Step Act explicitly provides that a prisoner's facility designation is "not reviewable by any court." See 18 U.S.C. § 3621(b) ("Notwithstanding any other provision of law, a designation of a place of imprisonment under this subsection is not reviewable by any court."). Even though petitioner characterizes the BOP's decision as a "refusal" to reconsider his designation, that refusal effectively designates petitioner's place of imprisonment and is not reviewable.
CONCLUSION
Petitioner's claim is not subject to judicial review, and his petition should be DENIED.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Federal Rule of Appellate Procedure 4(a)(1) should not be filed until entry of the district court's judgment or appealable order. The parties may file specific written objections within fourteen (14) days from the date of service of a copy of this recommendation. If an objection is filed, any response to the objection is due within fourteen (14) days from the date of the objection. See Fed. R. Civ. P. 72, 6. The parties are advised that the failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
DATED this 5th day of March 2019.
s/ Mustafa T. Kasubhai
MUSTAFA T. KASUBHAI
United States Magistrate Judge