Opinion
CV 22-00178-PHX-JAT (ESW)
05-16-2022
Joseph Turner, Petitioner, v. Warden Russel Heisner, Respondents.
TO THE HONORABLE JAMES A. TEILBORG, SENIOR UNITED STATES DISTRICT JUDGE:
REPORT AND RECOMMENDATION
HONORABLE EILEEN S. WILLETT, UNITED STATES MAGISTRATE JUDGE
On September 23, 2015, Petitioner was convicted in the United States District Court, Southern District of Mississippi on one count of Possession with Intent to Distribute 50 Grams or More of Actual Methamphetamine in violation of 21 U.S.C. § 841(a)(1). (Doc. 7-1 at 18). The District Court sentenced Petitioner to a 199-month prison term. (Id. at 19). Petitioner is currently incarcerated at the Federal Correctional Institution-Phoenix.
Pending before the Court are Petitioner's “Petition for a Writ of Habeas Corpus Under 28 U.S.C. § 2241” (the “§ 2241 Petition”) (Doc. 1) and Respondent's Motion to Dismiss (Doc. 7). For the reasons explained herein, the undersigned recommends that the Court grant the Motion (Doc. 7) and dismiss the § 2241 Petition (Doc. 1) without prejudice.
While a federal prisoner challenging the validity of a conviction must bring a petition under 28 U.S.C. § 2255, a petitioner challenging the manner, location, or execution of that sentence must ordinarily rely on a petition under § 2241. See Hernandez v. Campbell, 204 F.3d 861, 864 (9th Cir. 2000). A federal prisoner must file a § 2241 petition in the district of his custodian, not the district that sentenced him. Id. at 865.
I. DISCUSSION
The claims presented in the § 2241 Petition concern the First Step Act of 2018 (“FSA”), which provides a means for federal inmates to earn time credit to be applied toward their sentences. As recounted in the Court's Screening Order,
The FSA created an evidence-based recidivism reduction program that incentivizes inmates to participate in and complete programs and productive activities by awarding them certain time credits. 18 U.S.C. § 3632(d)(4). To apply these earned time credits, the Bureau of Prisons (“BOP”) was required to develop a risk and needs assessment system within 210 days after enactment of the FSA. 18 U.S.C. § 3632(a). On January 19, 2022, the BOP implemented its final agency rules regarding the earning and awarding of time credits under the FSA. See 87 Fed.Reg. 2, 705-01, 2022 WL 159155 (codified at 28 C.F.R. §§ 523.40-523.44).
Petitioner raises three grounds for relief and seeks “credit, in writing, ” for the 330 time credits he has earned, as of December 31, 2021, under the First Step Act (FSA).
In Ground One, Petitioner contends the FSA allows inmates who are at a low risk of recidivism to earn 15 days of time credits for every 30 days of participation in productive activities. He claims that “[b]ased on factors listed in the PATTERN recidivism risk assessment tool, ” he should have been classified as a low risk of recidivism since the FSA was enacted, but his “recidivism risk level was misrepresented as medium.”
In Ground Two, Petitioner alleges that with the exception of the time he spent in quarantine during the pandemic, he has continuously participated in productive activities since the FSA was enacted. In Ground Three, he contends the Bureau of Prisons had 210 days to fully comply with the FSA, but it is not in compliance with the provisions of the FSA and has not been properly keeping track of FSA time credits.(Doc. 3 at 1-2). The Court required Respondent to answer the § 2241 Petition. (Id. at 2).
On March 23, 2022, Respondent filed a “Return and Answer and Motion to Dismiss” (Doc. 7). In the filing, Respondent recounts that Petitioner's projected release date is September 25, 2028. (Id. at 2; Doc. 7-1 at 11, ¶ 27). Respondent states that: “Even if Petitioner's claim that he has earned and is entitled to have applied 330 FSA [time credits] is accurate, he would not be eligible for any pre-release placement on home confinement, halfway house, or early supervised released for over four years.” (Doc. 7 at 8). Respondent asserts that “Petitioner is simply not eligible for any FSA [time credits] to be applied at this time so his claim is not ripe.” (Id. at 8).
In his Response to the Motion to Dismiss, Petitioner clarifies that he is not requesting “early release or to have [his] FSA [time credits] applied at this time.” (Doc. 8 at 2). Petitioner states:
I fully understand that FSA [time credits] are not eligible to be applied until I have earned time credits “in an amount that is equal to the remainder of (my) imposed term of imprisonment.” In order to be clear about when that threshold has been crossed my earned time credit must first be calculated. I am only asking that my FSA [time credits] earned between December 18, 2018 and December 31, 2021 be properly calculated now and verified, in writing, to ensure that there will be no discrepancies when I am eligible to apply them.(Doc. 8 at 2).
Article III of the United States Constitution limits the jurisdiction of federal courts to “actual, ongoing cases or controversies.” Lewis v. Continental Bank Corp., 494 U.S. 472, 477 (1990). Two components of the Article III case-or-controversy requirement are the “closely related” concepts of standing and ripeness. Bova v. City of Medford, 564 F.3d 1093, 1095-96 (9th Cir. 2009) (citing Colwell v. Dep't of Health & Human Servs., 558 F.3d 1112, 1121, 1123 (9th Cir. 2009)).
To have standing, a plaintiff must have suffered an injury in fact that is “concrete and particularized, ” that can be fairly traced to the defendant's action, and that can be redressed by a favorable decision of the court. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). “While standing is primarily concerned with who is a proper party to litigate a particular matter, ripeness addresses when litigation may occur.” Lee v. Oregon, 107 F.3d 1382, 1387 (9th Cir. 1997) (emphasis in original). “[I]n many cases, ripeness coincides squarely with standing's injury in fact prong.” Thomas v. Anchorage Equal Rights Comm'n, 220 F.3d 1134, 1138 (9th Cir. 2000) (en banc). “[B]ecause the focus of [the] ripeness inquiry is primarily temporal in scope, ripeness can be characterized as standing on a timeline.” Id.
For example, “[a] claim is not ripe for adjudication if it rests upon contingent future events that may not occur as anticipated, or indeed may not occur at all.” Texas v. United States, 523 U.S. 296, 300 (1998) (quoting Thomas v. Union Carbide Agric. Prods. Co., 473 U.S. 568, 580-81 (1985) (internal quotation marks omitted)). “If the contingent events do not occur, the plaintiff likely will not have suffered an injury that is concrete and particularized enough to establish the first element of standing.” Bova, 564 F.3d at 1096 (citing Lujan, 504 U.S. at 560). The ripeness doctrine is designed “to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties.” Nat'l Park Hosp. Ass'n v. Dep't of Interior, 538 U.S. 803, 807- 08 (2003) (quoting Abbott Labs. v. Gardner, 387 U.S. 136, 148-49 (1967)).
Under 18 U.S.C. § 3624(g)(1)(A), FSA earned time credits can be applied toward prerelease custody or supervised release only when accumulated credits are equal to the remainder of the prison term. As noted, the Petitioner has over six years remaining on his sentence. Petitioner concedes that because his asserted 330 days of FSA time credits are not equal to the remainder of his sentence, he is not currently eligible for the application of those purported time credits. (Doc. 8 at 2).
Because Petitioner is not yet eligible for application of time credits under the FSA, the undersigned is persuaded by Respondent's argument that the § 2241 Petition is not ripe for review. Petitioner has failed to establish an “immediate injury” that would be redressed by the relief that he seeks. See Ford v. Chapman, 371 Fed.Appx. 513, 514 (5th Cir. 2010) (finding that regardless of whether § 2241 petitioner's release date was computed on the basis of the BOP's interpretation of the good time credit statute or the petitioner's interpretation, the petitioner's release was not imminent and the petitioner therefore “failed to establish an ‘immediate injury' that would be redressed by the relief that she seeks”); Markley v. James, No. 21-3067-JWL, 2021 WL 1736859, at *4 (D. Kan. May 3, 2021) (denying § 2241 petition where the petitioner failed to show current eligibility for the application of credits under the FSA); Sample v. Morrison, 406 F.3d 310, 312 (5th Cir. 2005) (finding lack of subject matter jurisdiction over § 2241 petitioner's claim challenging the BOP's calculation of good time credits where the petitioner did not claim that he was eligible for immediate release, describing the claim as “temporally distant and speculative nature” and explaining that the claim was not ripe because the prisoner had not established that he would sustain immediate injury that could be redressed by the relief requested); Rubinov v. Pliler, No. 21-CV-4397 (LJL), 2021 WL 5567826, at *5 (S.D.N.Y. Nov. 29, 2021) (finding that § 2241 petitioner's claim asserting applicability of FSA time credits was ripe as the petitioner was asserting that he “is currently being imprisoned when in fact he should not be, ” but noting that “if a petitioner were seeking to having time credits applied so that his projected release date would be moved up to another temporally distant date, that would be another matter”).
It is recommended that the Court grant Respondent's Motion to Dismiss (Doc. 7) and dismiss the § 2241 Petition without prejudice.
II. CONCLUSION
Based on the foregoing, IT IS RECOMMENDED that the Court grant Respondent's Motion to Dismiss (Doc. 7).
IT IS FURTHER RECOMMENDED that the Court dismiss the § 2241 Petition (Doc. 1) without prejudice.
This Report and Recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Fed. R. App. P. 4(a)(1) should not be filed until entry of the District Court's judgment. The parties shall have fourteen days from the date of service of a copy of this Report and Recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6, 72. Thereafter, the parties have fourteen days within which to file a response to the objections. Failure to file timely 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 file timely objections to any factual determinations of the Magistrate Judge may be considered a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the Magistrate Judge's recommendation. See Fed.R.Civ.P. 72.