Opinion
CV 23-01978-PHX-SRB (ASB)
02-06-2024
Cesar Vargas Diaz, Petitioner, v. Russell Heisner, Respondent.
REPORT AND RECOMMENDATION
Honorable Alison S. Bachus United States Magistrate Judge
TO THE HONORABLE SUSAN R. BOLTON, SENIOR UNITED STATES DISTRICT JUDGE:
Pending before the Court is Petitioner Cesar Vargas Diaz's pro se Petition for a Writ of Habeas Corpus Under 28 U.S.C. § 2241 (Doc. 1). The Petition listed one ground for relief under the First Step Act and the Coronavirus Aid, Relief, and Economic Security Act (the “CARES Act”). (Id.) Petitioner is in the custody of the Federal Bureau of Prisons (“BOP”). In an Order filed on December 21, 2023, the Court reviewed the Petition, dismissed the CARES Act claim, and directed Respondent to file an Answer to the First Step Act claim. (Doc. 5.) Respondent timely filed an Answer to the Petition for Writ of Habeas Corpus and included therein a request to dismiss the matter. (Doc. 9.) 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 152 months' imprisonment for a conviction in the United States District Court for the Eastern District of California for Conspiracy to Distribute and to Possess with Intent to Distribute Methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 846. (Doc. 9-1, Att. 1.) He is incarcerated at the Federal Correctional Institution-Phoenix (“FCI-Phoenix”). (Id.) In his Answer, Respondent advised the properly named Respondent should be FCI-Phoenix's Interim Warden J. Monarez, III.
In his Petition, Petitioner argues that he was incarcerated in his cell during the COVID-19 pandemic and Respondent improperly failed to award him “credits” under the First Step Act “for being locked down, they say it's programming.” (Doc. 1 at 4.) He failed to request any specific relief. (Id. at 9.) He further asserts 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, Respondent contends this Court lacks subject matter jurisdiction pursuant to 18 U.S.C. § 3625, lacks authority to compel discretionary action by BOP. (Doc. 9 at 6-9.) Respondent also argues Petitioner lacks a liberty interest in his First Time Act credits, Petitioner failed to exhaust his administrative remedies, and the Petition fails on the merits. (Id. at 5-6, 9-12.)
The Court notes that the verbiage used by Petitioner, including the use of the phrase “they say it's programming,” is identical to that used by a petitioner in unrelated § 2241 action out of the same institution that was addressed by the undersigned. Compare Doc. 1 at 4 in this case with Doc. 1 at 4 in No. CV 23-01948-PHX-DJH (ASB).
This claim regarding exhaustion also mirrors the claim made by the petitioner in CV 23-01948-PHX-DJH (ASB). (Doc. 1 at 4 in No. CV 23-O1948-PHX-DJH(ASB).)
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.
Petitioner argues 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.
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 BOP has failed to give him the credits that “Congress mandated that inmates get [] for being locked down” during the pandemic. (Doc. 1 at 4.) He alleges that “they” (presumably Congress, but it is unclear) “say it is programming.” (Id.) Thus, and without citing to any support, Petitioner seems to argue the time he spent in lockdown equates to programming under the First Step Act, or that he should get credit for the programming that he was precluded from doing due to the pandemic lockdown. In making this claim, Petitioner essentially contends BOP has failed to apply First Step Act credits to his particular sentence. Such an act is 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 be dismissed for lack of subject matter jurisdiction.
Even if the Petition were considered on its merits, the undersigned would recommend dismissal. It is undisputed that Petitioner's recidivism level is assessed to be “medium risk.” (Doc. 9-1, Att. 2 at 12.) Under 18 U.S.C. § 3624(g), a prisoner may not be released to prerelease custody unless he has a minimum or low risk of recidivism for his last two reassessments, and for supervised release, his risk must be low for the last two reassessments. Petitioner is therefore not a prisoner would be eligible for release, by function of statute. However, the Court will not recommend dismissal for that reason because the Ninth Circuit has made it clear, albeit in an unpublished decision, that a district court should not consider a 2241 petition's merits when that court lacks jurisdiction. Mohsen, 583 Fed. App'x. at 842 (applying Reeb, finding district court lacked jurisdiction, and vacating portion of district court's order that considered petition's merits).
B. 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. The Court agrees. As the Court has discussed above, 18 U.S.C. § 3624 confers upon the 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).
C. Exhaustion
The Reeb court further 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. As a prudential, rather than jurisdictional matter, prisoners must exhaust available administrative remedies prior to seeking judicial relief. Huang v. Ashcroft, 390 F.3d 1118, 1123 (9th Cir. 2004); Tucker v. Carlson, 925 F.2d 330, 332 (9th Cir. 1990); 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).
In his Petition, Petitioner claims: “I could not do all my administrative remedies because my unit team did not give me back my BP8, I can not (sic) turn in a BP9 without the BP8.” (Doc. 1 at 4.) Petitioner fails 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. Respondent's Answer indicates Petitioner has filed two prior administrative remedies while in BOP custody, but those were regarding a disciplinary sanction and compassionate release request, respectively. (Doc. 9-2, Ex. B.) Based on the record before it, the Court is not inclined to excuse Petitioner from exhaustion. However, whether Petitioner was prevented from exhausting his administrative remedies need not be resolved because the Petition should be dismissed for the reasons set forth above.
D. Conclusion
For the reasons set forth above, the Court 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 Interim Warden J. Monarez, III as Respondent in this matter.