I. INTRODUCTION

18 19 On February 7, 2025, United States Magistrate Judge Brianna Fuller 20 Mircheff (the “Magistrate Judge”) issued a Report and Recommendation denying 21 Higinio Noya-Rodriguez’s pro se petition for a writ of habeas corpus. Dkt. 5 22 (“R&R”). On March 3, 2025, Higinio Noya-Rodriguez (“petitioner”) filed his 23 objections to the R&R. Dkt. 7 (“Obj.”). 24 Pursuant to 28 U.S.C. § 636, the Court has reviewed the records and files 25 herein, the R&R of the Magistrate Judge, and petitioner’s Objections thereto. 26 After having made a de novo determination of the portions of the R&R to which 27 1 petitioner’s Objections were directed, the Court accepts the report, findings, and 2 recommendations of the Magistrate Judge. 3 II. BACKGROUND 4 Petitioner Higinio Noya-Rodriguez is currently serving a 70-month federal 5 sentence imposed by a district judge in the Middle District of Florida at FCI 6 Lompoc, a federal prison located in the Central District of California. R&R at 1. 7 He is currently scheduled to be released, as calculated by the Federal Bureau of 8 Prisons (“BOP”), on February 3, 2026. Id. 9 On January 19, 2024, in a separate case, petitioner filed a petition for writ of 10 habeas corpus under 28 U.S.C. § 2241 (“2024 Petition”) against respondent Bryan 11 Birkholz (“Birkholz”), the warden of FCI Lompoc. See dkt. 1, Noya-Rodriguez v. 12 Birkholz, 2:24-cv-00559-CAS-BFM (“Case No. 24-cv-00559”). On May 10, 13 2024, the Magistrate Judge issued a report and recommendation granting 14 Birkholz’s motion to dismiss the 2024 Petition. See dkt. 9, Case No. 24-cv-00559. 15 On July 16, 2024, this Court accepted the findings and recommendations of the 16 Magistrate Judge. Dkt. 11, Case No. 24-cv-00559. In dismissing the 2024 17 Petition, the Magistrate Judge found that petitioner “is subject to a removal order 18 from an immigration court, and is therefore not eligible to apply earned time 19 credits to early release from custody.” Dkt. 9 at 2, Case No. 24-cv-00559. The 20 Magistrate Judge found that petitioner was subject to this removal order even 21 though United States Immigration and Customs Enforcement (“ICE”) “has been 22 unable to physically remove him from the country for the past twenty years.” Id. at 23 4. Specifically, the Magistrate Judge determined that the fact “[t]hat ICE may not 24 be able to effectuate removal does not mean that Noya-Rodriguez is not subject to 25 an order of removal. He is.” Id. (emphasis in original). 26 On January 21, 2025, in the present case, petitioner submitted another 27 petition for writ of habeas corpus under 28 U.S.C. § 2241 (“2025 Petition”), also 1 against respondent Birkholz, again claiming that the BOP had deprived him of 2 custody credit to which he was entitled under the First Step Act (“FSA”), 18 3 U.S.C. § 3632(d)(4)(C). Dkt. 1 at 1-2. 4 On February 7, 2025, the Magistrate Judge issued the instant R&R, finding 5 that dismissal of the 2025 Petition was appropriate pursuant to Rule 4 of the Rules 6 Governing Section 2254 Cases, which also govern habeas petitions brought under 7 28 U.S.C. § 2241. R&R at 2-3 (citing Rule 4 and Rule 1(b), Rules Governing 8 Section 2254 Cases). The Magistrate Judge determined that petitioner was not 9 entitled to relief because (1) given that petitioner’s 2024 Petition was fully 10 litigated, his 2025 Petition was barred by claim preclusion principles; and (2) 11 petitioner’s new arguments—that his removal order could not be “reinstated” and 12 that “different rules apply to Cubans”—failed on the merits. Id. at 3. 13 III. LEGAL STANDARD 14 “A judge of the court may accept, reject, or modify, in whole or in part, the 15 findings or recommendations made by the magistrate judge.” 28 U.S.C. § 16 636(b)(1)(C); see also Fed. R. Civ. P. 72(b)(3) (stating “[t]he district judge must 17 determine de novo any part of the magistrate judge’s disposition that has been 18 properly objected to,” and “[t]he district judge may accept, reject, or modify the 19 recommended disposition; receive further evidence; or return the matter to the 20 magistrate judge with instructions”). Proper objections require “specific written 21 objections to the proposed findings and recommendations” of the magistrate judge. 22 Fed. R. Civ. P. 72(b)(2). “A judge of the court shall make a de novo determination 23 of those portions of the report or specified proposed findings or recommendations 24 to which objection is made.” 28 U.S.C. § 636(b)(1)(C); see also United States v. 25 Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (“The statute makes it clear that 26 the district judge must review the magistrate judge’s findings and 27 recommendations de novo if objection is made, but not otherwise.”). Where no 1 objection has been made, arguments challenging a finding are deemed waived. 2 See 28 U.S.C. § 636(b)(1)(C) (“Within fourteen days after being served with a 3 copy, any party may serve and file written objections to such proposed findings 4 and recommendations as provided by rules of court.”). Moreover, “[o]bjections to 5 a R&R are not a vehicle to relitigate the same arguments carefully considered and 6 rejected by the Magistrate Judge.” Chith v. Haynes, No. C18-5342 BHS, 2021 WL 7 4744596, at *1 (W.D. Wash. Oct. 12, 2021). 8 IV. DISCUSSION 9 In his Objections, petitioner appears to raise four arguments. See generally 10 Obj. First, petitioner states that the R&R “fails to recognize the difference between 11 [his] previous claim” in the 2024 Petition, which asserted that “the final order of 12 removal is invalid because [p]etitioner is a citizen of Cuba,” and his current claim 13 in the 2025 Petition, which asserts that “reinstatement of a previous final order 14 pursuant to 8 U.S.C. § 1231(a)(5) and 8 C.F.R. § 241.8(a) requires reentry as a 15 prerequisite to reinstatement.” Obj. at 1. Second, petitioner argues that the R&R 16 does not acknowledge that his circumstances have changed since he filed the 2024 17 Petition, as he filed an asylum claim on November 25, 2024, which was 18 subsequently rejected. Id. at 2-3. Third, petitioner asserts that the Magistrate 19 Judge’s determination about the purported “reinstatement” of his removal order 20 “does not take into account multiple avenues of relief for an alien after a final order 21 is entered.” Id. at 3. Fourth, petitioner contends that his “documents clearly 22 outline his status as a Cuban who meets the requirements of the Cuban Adjustment 23 Act,” Pub. L. No. 89–732, 80 Stat. 1161 (1966) (codified as a historical note to 8 24 U.S.C. § 1255). Id. at 1. The Court addresses each argument in turn. 25 As an initial matter, the Court agrees with the Magistrate Judge that the 2024 26 Petition and the 2025 Petition largely set forth the same claim. The Court further 27 agrees that, in the 2025 Petition, petitioner did not provide any facts suggesting 1 that his circumstances had changed since the denial of the 2024 Petition. As the 2 Magistrate Judge noted, “claim preclusion principles generally prevent a party 3 from re-litigating the same claim a second time, even if the party presents new 4 arguments that were not raised in the earlier litigation.” R&R at 3. The Court 5 finds that the Magistrate Judge correctly denied the petition for this reason, as “a 6 district court may refuse to entertain a repetitive [habeas] petition absent a showing 7 of manifest injustice or a change in law.” Polizzi v. United States, 550 F.2d 1133, 8 1135 (9th Cir. 1976). 9 In response to petitioner’s first Objection, the Court finds that the R&R does 10 recognize the differences between the 2024 Petition and the 2025 Petition: it notes 11 the “slight variations on his previous arguments,” proceeds to analyze those 12 arguments on the merits, and concludes that “[p]etitioner’s new arguments do not 13 persuade the Court that its prior conclusion was incorrect.” R&R at 2-3. The 14 Magistrate Judge correctly found that the purported “reinstatement” of petitioner’s 15 removal order does not change the fact that he is still “subject to a final order of 16 removal” for the purposes of 18 U.S.C. § 3632(d)(4)(E) and is therefore not 17 eligible to apply his FSA earned time credits toward prerelease custody or 18 supervised release. Id. at 4. This is because, as the Magistrate Judge noted, the 19 “reinstatement” process to which petitioner refers is not relevant to this case, as his 20 removal order was never executed. Id. Accordingly, contrary to his allegation, 21 petitioner’s removal order was never “reinstated.” Id. See, e.g., Alcala v. Holder, 22 563 F.3d 1009, 1013 (9th Cir. 2009) (“[W]hen an alien subject to removal leaves 23 the country, the removal order is deemed to be executed. If the alien reenters the 24 country illegally, the order may not be executed against him unless it has been 25 ‘reinstated’ by an authorized official.”) (quoting Morales-Izquierdo v. Gonzales, 26 486 F.3d 484, 487 (9th Cir. 2007)). 27 1 In his Objections, petitioner appears to refer to the immigration detainer 2 issued against him on August 17, 2023 as the “reinstatement” at issue. Obj. at 3. 3 The Magistrate Judge correctly addressed petitioner’s apparent conflation of an 4 immigration detainer and a removal order in her R&R dismissing the 2024 5 Petition, which this Court accepted. See dkt. 9 at 5, Case No. 24-cv-00559 (“A 6 removal order is an order by an immigration judge (or other designated official) 7 concluding that a person is removable to another country. An immigration detainer 8 is different: it informs the facility holding an individual that ICE wants to take 9 custody of him, once the facility no longer intends to hold him, for purposes of 10 removing that individual from the United States.”). This Court agrees with the 11 Magistrate Judge that “[b]ecause the two are separate, any challenges [petitioner] 12 might make to the immigration detainer cannot change the fact that he is subject to 13 an order of removal, and thus statutorily ineligible to apply earned time credits to 14 early release.” See id. 15 In response to petitioner’s second Objection, petitioner is correct that the 16 R&R does not consider his asylum claim, allegedly filed on November 25, 2024 17 and subsequently rejected on an unspecified date. See generally R&R; see Obj. at 18 2. However, because the petition itself, filed on January 21, 2025, does not 19 mention petitioner’s asylum claim, see generally dkt. 1, it appears that petitioner 20 raises this issue for the first time in his Objections. “[A] district court has 21 discretion, but is not required, to consider evidence presented for the first time in a 22 party’s objection to a magistrate judge’s recommendation.” United States v. 23 Howell, 231 F.3d 615, 621 (9th Cir. 2000). Because petitioner was aware that his 24 asylum claim had been filed at the time that he filed the instant petition, this Court 25 could, in its discretion, refuse to consider it at this juncture. 26 Nevertheless, examining the merits of petitioner’s new allegation, it does not 27 alter the Magistrate Judge’s ultimate determination that petitioner’s removal order 1 makes him ineligible for application of his earned time credits. As petitioner 2 concedes that his asylum claim was rejected, see Obj. at 3, it appears that he is still 3 subject to a removal order and is still barred from applying his FSA earned time 4 credits. See also Jacinto v. Neely, No. 7:24-CV-00084-LCB-SGC, 2024 WL 5 3448471, at *1 (N.D. Ala. July 16, 2024) (“The petitioner first seems to suggest 6 that, notwithstanding her final administrative order of removal, she is eligible to 7 receive the benefit of FSA time credits because she has applied for asylum. She 8 cites no authority to support her suggestion, and the court is aware of none.”) 9 (citations omitted). 10 In response to petitioner’s third Objection, the Court is not persuaded that 11 the Magistrate Judge was required to “take into account” the other “avenues for 12 [immigration] relief” listed by petitioner. See Obj. at 3-4. According to petitioner, 13 these include the United Nations Convention Against Torture and Other Cruel, 14 Inhuman, or Degrading Treatment of Punishment (“CAT”), withholding 15 proceedings, and asylum proceedings. Id. at 4. The Court has already addressed 16 petitioner’s rejected asylum application. As for the CAT and withholding 17 proceedings, petitioner does not allege that he has filed an application for 18 withholding of removal under the CAT. As determined by the Magistrate Judge, 19 “[t]he fact that such an avenue of relief exists… does not change the fact that 20 [p]etitioner ‘is’ (at least for the moment) ‘the subject of a final order of removal’ 21 for purposes of 18 U.S.C. § 3632(d)(4)(E).” R&R at 4. 22 In response to petitioner’s fourth Objection, while petitioner argues that he 23 “meets the requirements of the Cuban Adjustment Act,” the Court agrees with the 24 Magistrate Judge that petitioner fails to show that “he has taken those steps [to 25 apply for adjustment of status]” or that he “has successfully adjusted his status.” 26 See Obj. at 1; R&R at 4. Rather, petitioner has only shown that this avenue 27 “hypothetically exist[s] for him.” R&R at 4. Therefore, as above, “[t]he fact that 1 an avenue of relief exists... does not change the fact that [p]etitioner ‘is’ (at 2 || least for the moment) ‘the subject of a final order of removal’ for purposes of 18 3 ||U.S.C. § 3632(d)(4)(E).” Id. 4 Accordingly, the Court agrees with the Magistrate Judge that petitioner has 5 || not shown that he is no longer subject to removal or that he was granted 6 || “cancellation of removal.” Petitioner is therefore not entitled to the relief sought 7 || and his petition was appropriately denied. 8 Vv. CONCLUSION ? Having completed its review, the Court ACCEPTS the findings and 10 || recommendations set forth in the R&R. Accordingly, petitioner’s petition for writ 11 of habeas corpus is DENIED with prejudice. 12 13 || Dated: July 21, 2025 tp

_ aneee 4. bright __ 15 HONORABLE CHRISTINA A. SNYDER

UNITED STATES DISTRICT JUDGE

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