Opinion
CV 23-1771-JGB(E)
05-16-2023
LEOBARDO BALDOVINOS-MOLINA, Petitioner, v. WARDEN B. BIRKHOLZ, Respondant.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
CHARLES F. EICK, UNITED STATES MAGISTRATE JUDGE
This Report and Recommendation is submitted to the Honorable Jesus G. Bernal, United States District Judge, pursuant to 28 U.S.C. § 636 and General Order 05-07 of the United States District Court for the Central District of California.
PROCEEDINGS
Petitioner, a federal prisoner, filed an "Emergency Petition for Release Pursuant to 28 U.S.C. § 2241" on March 8, 2023. Respondent filed a "Motion to Dismiss, etc." on March 31, 2023. Petitioner failed to file opposition to the Motion to Dismiss within the allotted time. See Minute Order, filed March 31, 2023.
BACKGROUND
Petitioner seeks to challenge the Bureau of Prisons' ("BOP's") failure to apply certain credits against Petitioner's sentence. Petitioner contends that credits are owing under the First Step Act. Respondent contends that no credits are owing because Petitioner is subject to a final order of removal. See 18 U.S.C. § 3632(b)(4)(E)(i). Respondent also contends that Petitioner has failed to exhaust available administrative remedies.
DISCUSSION
"Federal prisoners are required to exhaust their federal administrative remedies prior to bringing a petition for a writ of habeas corpus in federal court." Martinez v. Roberts, 804 F.2d 570, 571 (9th Cir. 1986) (citations omitted); see also Ward v. Chavez, 678 F.3d 1042, 1045 (9th Cir. 2012) ("As a prudential matter, courts require that habeas petitioners exhaust all available judicial and administrative remedies before seeking relief under § 2241."). The exhaustion requirement "aid[s] judicial review by allowing the appropriate development of a factual record in an expert forum; conserve[s] the court's time because of the possibility that the relief applied for may be granted at the administrative level; and allow[s] the administrative agency an opportunity to correct errors occurring in the course of administrative proceedings." Ruviwat v. Smith, 701 F.2d 844, 845 (9th Cir. 1983).
While petitioners may be required, as a prudential matter, to exhaust available administrative remedies before seeking habeas relief under 28 U.S.C. section 2241, exhaustion is not a "jurisdictional prerequisite" under the statute. Ward v. Chavez, 678 F.3d at 1045; Laing v. Ashcroft, 370 F.3d 994, 997 (9th Cir. 2004); see Castro-Cortez v. I.N.S., 239 F.3d 1037, 1047 (9th Cir. 2001), abrogated on other grounds, Fernandez-Vargas v. Gonzales, 548 U.S. 30 (2006) ("[S]ection [2241] does not specifically require petitioners to exhaust direct appeals before filing petitions for habeas corpus. However, we require, as a prudential matter, that habeas petitioners exhaust available judicial and administrative remedies before seeking relief under § 2241.") (citation and footnote omitted); accord Brown v. Rison, 895 F.2d 533, 535 (9th Cir. 1990), abrogated on other grounds, Reno v. Koray, 515 U.S. 50 (1995).
The BOP has established an administrative remedy process through which inmates may seek review of issues relating to any aspect of their confinement. 28 C.F.R. §§ 542.10(a), (b). Inmates must first attempt an informal resolution of the grievance. 28 C.F.R. § 542.13. If informal resolution is not satisfactory, the inmate may file a formal written Administrative Remedy Request. 28 C.F.R. § 542.14. If the inmate is not satisfied with the Warden's response to this Request, the inmate may appeal to the Regional Director. 28 C.F.R. § 542.15. The final level of review is review by the Office of the General Counsel. Id. In the present action, Petitioner made no effort to exhaust administrative remedies before filing the Petition (Declaration of Yolanda Sanchez, filed March 31, 2023, at ¶ 7).
Courts have discretion to waive the exhaustion requirement when "administrative remedies are inadequate or not efficacious, pursuit of administrative remedies would be a futile gesture, irreparable injury will result, or the administrative proceedings would be void." Laing v. Ashcroft, 370 F.3d at 1000 (citation and quotations omitted). However, "this discretion is not unfettered." Id. at 998; see also Murillo v. Mathews, 588 F.2d 759, 762 n.8 (9th Cir. 1978) ("Although the application of the rule requiring exhaustion is not jurisdictional, but calls for the sound exercise of judicial discretion, it is not lightly to be disregarded.") (citation and internal quotations omitted). A "key consideration" in exercising such discretion is whether "relaxation of the requirement would encourage the deliberate bypass of the administrative scheme." Laing v. Ashcroft, 370 F.3d at 1000 (citation and quotations omitted).
Petitioner bears the burden to demonstrate that exhaustion would be futile. See Leonardo v. Crawford, 646 F.3d 1157, 1161 (9th Cir. 2011) (remanding for dismissal of section 2241 petition for failure to exhaust, where petitioner failed to "demonstrat[e] grounds for excusing the exhaustion requirement"); see Fillingham v. United States, 867 F.3d 531, 535 (5th Cir. 2017), cert, denied, 138 S.Ct. 1035 (2018) ("While exceptions to the exhaustion requirement do exist, they apply only in 'extraordinary circumstances,' and the burden of proof for demonstrating the futility of administrative review rests with the petitioner.") (citation omitted); accord, Eldridge v. Berkebile, 576 Fed.Appx. 746, 747 (10th Cir. 2014); see also Hoslett v. Thomas, 2012 WL 3990446, at *3 (E.D. Cal. Sept. 11, 2012) ("Generally, the burden falls upon the party seeking to bypass exhaustion to show that exhaustion of administrative remedies would be futile.") (citations omitted).
Here, Petitioner does not argue any inability to exhaust his administrative remedies nor any interference by Respondent in connection with the exhaustion process. Although Petitioner argues the alleged futility of pursuing administrative remedies, his argument does not demonstrate any legitimate reason to excuse Petitioner's failure even to attempt to exhaust those remedies. Even if the pursuance of administrative remedies ultimately fails to yield relief, it may well yield a more complete evidentiary record than presently exists. Moreover, excusal of the exhaustion requirement as to Petitioner may encourage others similarly situated deliberately to bypass the requirement. Courts in the Ninth Circuit, including the Ninth Circuit itself, have required the exhaustion of administrative remedies in circumstances materially indistinguishable from the circumstances here. See Ahmad v. Jacquez, 860 Fed.Appx. 459, 462-63 (9th Cir. 2021) (upholding dismissal of petition for failure to exhaust, and rejecting futility argument, where the petitioner alleged that the BOP's denial of credits under the First Step Act had deviated from the BOP's statutory authority); Parada v. Birkholz, 2023 WL 2666847, at *2-3 (C.D. Cal. March 28, 2023) ("District courts in this Circuit have dismissed federal habeas actions challenging the [First Step Act] credits system when prisoners did not first seek relief through the BOP's administrative grievance process"; rejecting futility argument); Villegas-Escobar v. Derr, 2023 WL 1993936, at *4 (D. Haw. Feb. 14, 2023) (dismissing for failure to exhaust a habeas petition seeking credits under the First Step Act where the respondent contended that the petitioner was subject to a final order of removal; "concerns regarding exhaustion are particularly relevant to time credits under the First Step Act").
RECOMMENDATION
For all of the foregoing reasons, IT IS RECOMMENDED that the Court issue an Order: (1) accepting and adopting this Report and Recommendation; and (2) directing that Judgment be entered denying and dismissing the Petition without prejudice.
NOTICE
Reports and Recommendations are not appealable to the Court of Appeals, but may be subject to the right of any party to file objections as provided in the Local Rules Governing the Duties of Magistrate Judges and review by the District Judge whose initials appear in the docket number. No notice of appeal pursuant to the Federal Rules of Appellate Procedure should be filed until entry of the judgment of the District Court.