Opinion
CV-22-00505-TUC-RM (AMM)
07-13-2023
Daniel Martinez, Petitioner, v. M. Gutierrez, Respondent.
REPORT AND RECOMMENDATION
Honorable Angela M. Martinez United States Magistrate Judge
On November 3, 2022, Petitioner Daniel Martinez (“Petitioner” or “Martinez”) filed a Writ of Habeas Corpus pursuant to Title 28, United States Code, Section 2241. (Doc. 1.) The matter was referred to Magistrate Judge Martinez for a Report and Recommendation. (Docs. 5, 18.) Respondent responded to the first petition (doc. 10); subsequently, Petitioner filed an amended petition with leave of court (doc. 14). The matter is now fully briefed. (Docs. 16, 17.) As set forth herein, the Magistrate Judge recommends that the District Court, after its independent review of the record, dismiss the petition on the merits.
I. Background
Petitioner is serving a 120-month sentence for distribution of methamphetamine in violation of 21 U.S.C. §§ 841(A)(1) and (B)(1)(A). (Doc. 10-2 at 3, 7.) His projected release date is February 3, 2024. (Id.) Petitioner's eligibility for earned time credits pursuant to the First Step Act (FSA) was reviewed on September 28, 2021. (Id. at 2-3.) At that time, he was determined to be eligible to earn FSA time credits. (Id. at 3.) Also at that time, he was determined to be at high risk for recidivism. (Id.)At his most recent Program Review on February 8, 2023, Petitioner was determined to be at medium risk for recidivism. (Docs. 16 at 2, 16-1 at 3.) According to Respondent, due to Petitioner's medium risk of recidivism, he is not eligible to have earned time credits applied toward prerelease custody or supervised release pursuant to Bureau of Prisons (BOP) policy. (Id.)
Inmates' recidivism risk levels are assessed bi-annually. (Doc. 10-2 at 3, ¶ 7.
Petitioner filed the instant petition seeking application of “approximately 250 days of time credits” accrued for completing the BOP's challenge program, completing a work assignment, and for good conduct. (Doc. 14.) Petitioner states that he continues to earn 10 days per month. (Id. at 6.) He further states that his time credits have not been applied towards prerelease custody or supervised release because of his recidivism risk score. (Id.) He argues that the only statutory barrier to earning or applying time credits under the FSA is, or should be, 18 U.S.C. § 3632(d)(4)(B) and that time credits should be applied regardless of an inmate's recidivism risk score. (Id.) Petitioner contends that the BOP policy set forth on pages 14 and 15 of Program Statement 5410.01 excluding inmates at medium or high risk of recidivism from applying earned time credits violates the statutory language in § 3632(d)(4)(A)-(C) which states that credits “shall be applied.” (Id. at 5.) He argues that under § 3632(d)(4)(A)-(C), the application of the time credits is not discretionary but mandatory. (Id.)
Petitioner states that he did not appeal the denial of his request to a higher agency because exhaustion would be futile as the petition raises a “facial challenge to official policy.” (Id. at 3.) He also states that in Respondent's first Answer, unit manager Stangl and legal assistant Mitchell “obstructed and lied about” his attempts to exhaust administrative remedies. (Doc. 14 at 6.)
Stangl disputes that she denied Martinez any administrative remedy or appeal forms and states that he may obtain these forms from any member of his unit team. (Doc. 10-2 at 3, ¶ 8.) Mitchell's declaration explains that Martinez twice utilized the BOP's Administrative Remedy Program to request that his earned time credits be applied to his sentence computation. (Doc. 10-3 at 7, ¶ 17.) Mitchell states that, although Martinez appealed the denial of his request to the Regional Director, the appeal was rejected because Martinez did not include a copy of his BP-9 response. (Id. at ¶ 19.) Martinez did not re-file the appeal with the Regional Director with the proper documents, nor did he appeal to the Office of General Counsel. (Id. at ¶¶ 20-21.)
Respondent contends that the petition should be dismissed because (1) Petitioner failed to exhaust his administrative remedies by appealing this matter to the Regional Director or to the Office of General Counsel; (2) the Court lacks subject matter jurisdiction to review the BOP's FSA time credit decisions pursuant to 18 U.S.C. § 3625 and the Administrative Procedure Act; (3) The BOP has discretion under 18 U.S.C. § 3624 on how to apply time credits and therefore Petitioner lacks a liberty interest in having his time credits applied to early release; and (4) the Court lacks jurisdiction to compel the BOP's discretionary actions and decisions concerning individualized applications of time credits. (Doc. 16 at 4-10.) Respondent further argues that the petition fails on the merits because the FSA and its implementing regulations plainly preclude the application of Petitioner's earned time credits to his sentence due to his medium recidivism risk, as determined at his most recent Program Review. (Id. at 10.) Respondent contends that the law is clear that an inmate must be determined to be at a minimum or low risk for recidivism before earned time credits can be applied to an early release. (Id. at 10-11.)
II. Applicable Law
A. Administrative Exhaustion
The Prison Litigation Reform Act (PLRA) mandates exhaustion of administrative remedies and “unexhausted claims cannot be brought in court.” Jones v. Bock, 549 U.S. 199, 211 (2007). A habeas petitioner must ordinarily exhaust available administrative remedies before filing a petition under § 2241, and a petition may properly be dismissed for failure to exhaust the administrative remedies made available by the BOP. See Tucker v. Carlson, 925 F.2d 330, 332 (9th Cir. 1991); Martinez v. Roberts, 804 F.2d 570, 571 (9th Cir. 1986); see also Xuyue Zhang v. Barr, 612 F.Supp.3d 1005, 1011-12 (C.D. Cal. 2020) (Ninth Circuit applies prudential exhaustion requirements to habeas petitions). The BOP's Administrative Remedy Program allows an inmate to seek formal review of an issue relating to his confinement. (Docs. 10-3 at 3-5, 16 at 3); see also Martinez, 804 F.2d at 571; 28 C.F.R. § 542.10. The Administrative Remedy Program consists of four levels of review: (1) information resolution (BP-8), (2) request to the Warden (BP-9), (3) appeal to the Regional Director (BP-10), and (4) appeal to the Office of General Counsel (BP-11). (Doc. 16 at 3.)
“Exhaustion is not required if pursuing those remedies would be futile.” Fraley v. U.S. Bureau of Prisons, 1 F.3d 924, 925 (9th Cir. 1993) (citing Terrell v. Brewer, 935 F.2d 1015, 1019 (9th Cir. 1991)); see also Wardv. Chavez, 678 F.3d 1042, 1045 (9th Cir. 2012). Exhaustion is likely futile “[w]here the agency's position on the question at issue appears already set, and it is very likely what the result of recourse to the administrative remedies would be.” Sierra Club v. Dombeck, 161 F.Supp.2d 1052, 1066 (D. Ariz. 2001) (citing SAIF Corp. v. Johnson, 908 F.2d 1434, 1441 (9th Cir. 1990)). The exhaustion requirement for habeas petitions may be waived if “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.” Xuyue Zhang, 612 F.Supp.3d at 1011-12 (quoting Laing v. Ashcroft, 370 F.3d 994, 1000 (9th Cir. 2004).
B. Jurisdiction
Jurisdiction over a § 2241 petition challenging an inmate's conditions of confinement, including the “execution of his sentence,” lies with the court that has jurisdiction over the prison. See Hernandez v. Campbell, 204 F.3d 861, 864 (9th Cir. 2000); see also Luna v. Engleman, 2022 WL 1211911, at *2 (C.D. Cal. Apr. 25, 2022). Habeas relief is available to petitioners contesting the deprivation of earned time credits and asking that time credits be applied to their sentence. Preiser v. Rodriguez, 411 U.S. 475, 487 (1973). This is so whether the restoration of time credits would result in a petitioner's immediate release or in shortening his prison sentence. Id. “[E]ven if restoration of respondents' good-time credits had merely shortened the length of their confinement, rather than required immediate discharge from that confinement,” their petitions “would still have been within the core of habeas corpus[.]” Id.; see also Setser v. United States, 566 U.S. 231, 244 (2012) (habeas relief under § 2241 available to prisoner contesting the BOP's determination of the length of his confinement).
C. Earned Time Credits
Under the FSA, an eligible inmate “shall earn 10 days of time credits for every 30 days of successful participation in evidence-based recidivism reduction programming or productive activities.” § 3632(d)(4). “Time credits . . . shall be applied toward time in prerelease custody or supervised release. The Director of the Bureau of Prisons shall transfer eligible prisoners, as determined under section 3624(g), into prerelease custody or supervised release.” § 3632(d)(4)(c).
Earned time credits can be applied to prerelease custody or supervised release if an inmate “has shown through the periodic risk reassessments a demonstrated recidivism risk reduction or has maintained a minimum or low recidivism risk, during the prisoner's term of imprisonment.” § 3624(g)(1)(B); see also § 3624(g)(1)(D)(i)(I) (“in the case of a prisoner being placed in prerelease custody, the prisoner has been determined under the System to be a minimum or low risk to recidivate pursuant to the last 2 reassessments of the prisoner”) and § 3624(g)(1)(D)(ii) (“in the case of a prisoner being placed in supervised release, the prisoner has been determined under the System to be a minimum or low risk to recidivate pursuant to the last reassessment of the prisoner”). Although part (B) of the statute suggests that an inmate may either demonstrate a reduced recidivism risk or maintain a low or minimum risk to be eligible for application of earned time credits, the statute goes on to require that an inmate be at a certain level of recidivism risk. See § 3624(g)(1)(A)-(D).
Federal regulations implementing the FSA state that time credits may be applied “toward prerelease custody or early transfer to supervised release under 18 U.S.C. § 3624(g) only if an eligible inmate has . . . (2) [s]hown through the periodic risk assessments a demonstrated recidivism risk reduction or maintained a minimum or low recidivism risk, during the term of imprisonment.” 28 C.F.R. § 523.44(b)(2). Time credits may be applied to prerelease custody “only when an eligible inmate has . . . (1) [m]aintained a minimum or low recidivism risk through his or her last two risk and needs assessments.” 28 C.F.R. § 523.44(c)(1). Time credits may be applied toward early transfer to supervised release “only when an eligible inmate has . . . maintained a minimum or low recidivism risk through his or her last risk and needs assessment.” 28 C.F.R. § 53.44(d)(1); see also doc. 10-2 at 13, 25-26, BOP Program Statement 5410.01 (setting forth requirements for application of FSA time credits). The Program Statement further states that inmates who have a high or medium recidivism risk level are ordinarily “considered inappropriate for early transfer to prerelease custody or supervised release.” (Doc. 10-2 at 26.)
When the text of a statute is “plain and unambiguous,” courts must apply the statute according to its terms. Carcieri v. Salazar, 555 U.S. 379, 387 (2009).
III. Discussion
A. Administrative Exhaustion
This Court recommends that the District Court find that Petitioner was not required to exhaust his administrative remedies, as such exhaustion would have been futile. Petitioner raises a facial challenge to the BOP's implementation of the statutes and regulations governing application of an inmate's FSA time credits. It is very likely that the outcome of any further appeals to the Regional Director or the Office of General Counsel would have been consistent with the adverse decisions Petitioner challenges here. Therefore, exhaustion of administrative remedies would have been futile.
B. Jurisdiction
This Court further recommends that the District Court find that it has jurisdiction over the amended petition. The Court's jurisdiction arises not from the Administrative Procedure Act but from federal jurisdiction over habeas corpus petitions and a § 2241 petition may contest the application, or lack thereof, of earned time credits to the length of a prisoner's confinement. See Preiser, 411 U.S. at 487-8 (suits that attack the duration of physical confinement fall within the core of habeas corpus); see also Jones v. Hendrix, No. 21-857, 2023 WL 4110233, at *5 (U.S. June 22, 2023) (federal courts' habeas jurisdiction covers all cases where a person's liberty is restrained in violation of the Constitution).
The Court acknowledges Respondents' argument that it lacks jurisdiction to review BOP's discretionary decisions regarding a specific inmate under 18 U.S.C. § 3625. (Doc. 10 at 6-7.) However, Petitioner's challenge to the application of his time credits is more properly characterized as a challenge to a BOP policy than to the BOP's decisions regarding him as an individual inmate. Petitioner does not contest that the BOP incorrectly determined his recidivism risk or erroneously applied its policies to him; rather, he contends that because the BOP's policy on recidivism risk and earned time credits is contrary to § 3632(d), his earned time credits should be applied regardless of his recidivism risk as a matter of law. This argument challenges the duration of Petitioner's confinement, which is at the “core” of habeas corpus. Notably, Respondents have cited no authority precluding this Court's review of the BOP's application of earned time credits to an inmate's sentence. To the contrary, courts have held that prisoners may contest the BOP's determination of the length of their confinement. Moreover, authority cited by Respondents supports finding that the Court has jurisdiction to review the BOP'S policy-based decisions. See Martin v. Gerlinski, 133 F.3d 1076, 1079 (8th Cir. 1998). Therefore, the Court may consider Petitioner's challenge to the BOP's determinations regarding the application of his time credits to his sentence.
C. Earned Time Credits
Upon reviewing the merits of the amended petition, this Court recommends that the District Court dismiss the amended petition because Petitioner's request that the Court order the BOP to apply his time credits to early release or supervised release time is legally unsupported. Petitioner's argument that application of time credits is mandatory and not discretionary relies on the provision of § 3632(d)(4)(c) stating that time credits “shall be applied toward time in prerelease custody or supervised release.” However, that provision goes on to state that “eligible prisoners, as determined under section 3624(g)” shall be released “into prerelease custody or supervised release.” In turn, § 3624(g) states that for a prisoner to be released into prerelease custody, he must have a minimum or low risk of recidivism for his last two reassessments, and for placement in supervised release, he must have a minimum or low risk of recidivism pursuant to his last reassessment. The uncontested record reflects that Petitioner's second-to-last reassessment determined that he had a high recidivism risk, and his last reassessment determined a medium risk. (Docs. 102, 16-1.) Therefore, Petitioner is not an “eligible prisoner” pursuant to § 3624(g).
Petitioner's argument that the application of time credits is not determined based on recidivism risk level is unsupported by a plain reading of the applicable statutes and regulations. See Carcieri, 555 U.S. at 387.
The Court notes that Petitioner has reduced his recidivism risk from high to medium over the course of his last two reassessments and thus “has shown through [his] periodic risk reassessments a demonstrated recidivism risk reduction,” pursuant to § 3624(g)(1)(B). However, under the plain language of the statute, this reduction alone is not sufficient to make him an “eligible prisoner” under § 3624(g), as he has not reached a “minimum or low recidivism risk.”
IV. Recommendation
For the reasons stated above, the Magistrate Judge recommends that the District Judge enter an Order dismissing Petitioner's amended petition pursuant to 28 U.S.C. § 2241 for a Writ of Habeas Corpus (doc. 14) because Petitioner's request that the BOP apply his time credits fails on the merits.
Pursuant to Federal Rule of Civil Procedure 72(b)(2), any party may serve and file written objections within fourteen days of being served with a copy of the Report and Recommendation. A party may respond to the other party's objections within fourteen days. No reply brief shall be filed on objections unless leave is granted by the District Court. If objections are not timely filed, they may be deemed waived. If objections are filed, the parties should use the following case number: 4:22-cv-00505-TUC-RM.