Opinion
CV-22-01881-PHX-JAT (MTM)
07-06-2023
Kent Jensen, Petitioner, v. Federal Bureau of Prisons, Respondent.
TO THE HONORABLE JAMES A. TEILBORG, SENIOR UNITED STATES DISTRICT JUDGE:
REPORT AND RECOMMENDATION
Honorable Michael T. Morrissey, United States Magistrate Judge.
Petitioner Kent Jensen has filed a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241.
I. SUMMARY OF CONCLUSION
Petitioner filed the instant habeas petition asserting a violation of Due Process in the loss of 90 days of earned-time credit pursuant to the First Step Act (“FSA”), 18 U.S.C. § 3632. After the filing of the petition, the Bureau of Prisons (“BOP”) applied 180 days of earned-time credit toward Petitioner's release date, and Petitioner has been released. The petition is therefore moot. The Court will recommend the petition be denied and dismissed with prejudice.
II. BACKGROUND
On July 21, 2021, Petitioner was sentenced to an 18-month term of imprisonment followed by three years of supervised release for a tax evasion conviction in the United States District Court for the District of Oregon. Doc. 11-1 at 13. On October 18, 2021, Petitioner entered federal custody at the Federal Correctional Institution in La Luna, Texas. Id. On February 23, 2022, Petitioner was moved to a residential reentry center in Salt Lake City, Utah. Id. at 14. On November 14, 2022, Petitioner moved to home confinement status. Id. On December 15, 2022, Petitioner was released from his term of imprisonment. Id.
III. PETITION FOR A WRIT OF HABEAS CORPUS
On August 16, 2022, Petitioner filed a Petition for a Writ of Habeas Corpus by a Person in Federal Custody in the United States District Court for the District of Utah. Doc. 1. In a September 19, 2022 Order, the District of Utah transferred the case to this District because Petitioner's custodian, the Bureau of Prisons' Residential Reentry Manager, is located in Phoenix. Doc. 3. The case transfer was completed on November 4, 2022. See Doc. 7 at 1.
As stated in this Court's order:
Petitioner raises one ground for relief in which he claims the BOP is failing to apply his earned-time credits to his sentence, in violation of his due process rights. Petitioner seeks an order requiring BOP to “apply all of Petitioner's [earned-timed credits] and to reduce his sentence in accordance with 18 U.S.C. § 3624(g)(3).”Doc. 7 at 1. Petitioner asserts that as of the date of the petition, he had earned an additional 90 days of earned-time credit that had not been awarded. Doc. 1-1 at 2. Respondent asserts, inter alia, the petition is moot because on December 15, 2022, petitioner was awarded 180 days of earned-time credit and was released. Doc. 11 at 1215. Petitioner did not file a reply.
A. Legal Standard
Habeas relief is available for a prisoner “in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241(c)(3). A challenge to the loss of time credit is cognizable in a § 2241 petition because the loss affects the duration of confinement. See Bostic v. Carlson, 884 F.2d 1267, 1269 (9th Cir. 1989) (“Habeas corpus jurisdiction is available under 28 U.S.C. [§] 2241 for a prisoner's claims that he has been denied good time credits without due process of law.” (citing Preiser, 411 U.S. 475, 48788 (1973))), overruled on other grounds by Nettles v. Grounds, 830 F.3d 922, 931 (9th Cir. 2016); see also Muhammad v. Close, 540 U.S. 749, 750 (2004) (“Challenges to the validity of any confinement or to particulars affecting its duration are the province of habeas corpus.”).
B. Jurisdiction
Article III of the Constitution limits the jurisdiction of the federal courts to actual ongoing cases or controversies. U.S. Const. art. III, § 2, cl. 1; see also Lewis v. Cont'l Bank Corp., 494 U.S. 472, 477 (1990). “Failure to satisfy Article III's case-or-controversy requirement renders a habeas petition moot.” Kittel v. Thomas, 620 F.3d 949, 951 (9th Cir. 2010) (citation omitted). “[P]arties must continue to have a personal stake in the outcome of the lawsuit.” Spencer v. Kemna, 523 U.S. 1, 7 (1998) (“[T]hroughout the litigation, the [petitioner] must have suffered, or be threatened with, an actual injury traceable to the defendant and likely to be redressed by a favorable judicial decision.” (citation and internal quotation marks omitted)). Accordingly, a case is moot when the court cannot grant any effectual relief. Mujahid v. Daniels, 413 F.3d 991, 994 (9th Cir. 2005) (noting that release to supervised release does not automatically moot a habeas claim if, for example, there is a possibility that a sentencing court could reduce the term of supervised release).
C. Petitioner's Earned-Time Credits Under the First Step Act
Under the First Step Act, enacted in December 2018, federal inmates can earn time credits by participating in programming. See Pub. L. No. 115-391, 132 Stat. 5194. Specifically, an eligible inmate “who successfully completes evidence-based recidivism reduction programming or productive activities, shall earn time credits” including “10 days of time credits for every 30 days of successful participation in evidence-based recidivism reduction programming or productive activities.” 18 U.S.C. § 3632(d)(4)(A)(i). In addition, an inmate determined to be at a minimum or low risk for recidivating may be eligible to “earn an additional 5 days of time credits for every 30 days of successful participation in evidence-based recidivism reduction programming or productive activities.” 18 U.S.C. § 3632(d)(4)(A)(ii).
On January 20, 2022, the BOP determined Petitioner had accrued 20 days of earned-time credit under the FSA. Doc. 11-1 at 14. The BOP applied the time credit and calculated Petitioner's projected release date to be January 6, 2023. Id. On August 16, 2022, Petitioner filed the instant habeas petition, arguing he was entitled to an additional 90 days of earned-time credit. Doc. 1. On December 15, 2022, Petitioner's time credits were recalculated, and the BOP applied an additional 180 days of time credit to Petitioner's release date. Id. at 15. Petitioner's new projected release date was July 30, 2022, and Petitioner was therefore eligible for immediate release. Id. Petitioner was released from his term of incarceration on December 15, 2022. Id.; see also BOP Inmate Locator, https://www.bop.gov/inmateloc/ (last visited July 6, 2023) (stating Petitioner was released on December 15, 2022).
The Court takes judicial notice of the BOP Inmate Locator, which is publicly available. See United States v. Basher, 629 F.3d 1161, 1165 n.2 (9th Cir. 2011) (taking judicial notice of same).
D. The Petition is Moot
In the habeas petition filed August 2022, Petitioner argues he is entitled to 90 days of FSA time credit which have not been applied to his projected release date. Doc. 1. However, in December 2022, the BOP awarded Petitioner 180 days of time credit and released him from his term of incarceration to begin supervised release. See doc. 11-1 at 14-15. Petitioner has therefore been awarded the requested relief. Therefore, even if Petitioner is correct that the BOP had wrongfully failed to apply Petitioner's earned time credits at the time he filed the habeas petition, the Court is unable to grant relief because the time credits have already been applied. Because the Court cannot grant any effectual relief, the habeas petition is moot. See Spencer, 523 U.S. at 7 (stating the petitioner must state an injury that is redressable in a judicial decision); Mujahid, 413 F.3d at 994-95 (explain a habeas petition is moot where there is no basis for shortening the time in custody); see also, e.g., Tamaalemalo v. Derr, No. CV 23-00032 LEK-KJM, 2023 WL 4054553, at *2 (D. Haw. June 16, 2023) (dismissing habeas petition as moot because the earned-time credits under the FSA were already applied and the petitioner was released to a term of supervised release); Sila v. Warden, 2023 WL 2504476, at *2 (C.D. Cal. Feb. 13, 2023), report and recommendation adopted, 2023 WL 2504989 (C.D. Cal. Mar. 13, 2023) (same).
IV. CONCLUSION
The Court concludes the petition is moot. The record is sufficiently developed, and the Court finds an evidentiary hearing is unnecessary for resolving this matter. See Rhoades v. Henry, 638 F.3d 1027, 1041 (9th Cir. 2011). Accordingly, IT IS RECOMMENDED the Petition (doc. 1) be denied and dismissed with prejudice.
IT IS FURTHER RECOMMENED a certificate of appealability and leave to proceed in forma pauperis on appeal be denied. Petitioner has not demonstrated reasonable jurists could find the ruling debatable or jurists could conclude the issues presented are adequate to deserve encouragement to proceed further. See Miller-El v. Cockrell, 537 U.S. 322, 327 (2003).
This Report and Recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal under Federal Rule of Appellate Procedure 4(a)(1) should not be filed until entry of the District Court's judgment. The parties have fourteen days from the date of service of this Report and Recommendation's copy 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 fourteen days to respond to the objections. Failure to timely object to the Magistrate Judge's Report and Recommendation may result in the District Court's acceptance of the Report and Recommendation without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure to timely object 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 of judgment entered pursuant to the Magistrate Judge's Report and Recommendation. See Fed.R.Civ.P. 72.