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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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WESTERN DIVISION

11 12 RAYMOND BELL, ) Case No. LA CV 19-03153-VBF-JPR ) 13 ) ORDER Petitioner, ) 14 ) Adopting the R & R in Part; ) 15 v. ) Granting in Part Doc 12 (Mot. to Dismiss) ) Denying Doc 2 (Mot. to Red. Sentence) 16 ) FELIPE MARTINEZ JR., ) Denying the Petition for Lack of Merit; 17 ) ) Directing the Entry of Separate Judgment; 18 Respondent. ) Dismissing the Action With Prejudice; ) Terminating the Case (JS-6) 19 20 Under 28 U.S.C. § 636, the Court has reviewed the habeas corpus petition, the 21 records on file, the Report and Recommendation (“R&R”), and the applicable law. 22 Neither party objected to the R&R or sought an extension of the objection deadline. 23 The R&R recommends that the Court decline to dismiss the petition for failure 24 to exhaust prison remedies (Doc 14 at 4-5). The Court agrees that the exhaustion 25 requirement should be waived due to futility and will adopt the R&R to that extent. 26 The Magistrate Judge further recommends that this Court dismiss the habeas 27 petition without prejudice on the ground that petitioner’s habeas claims are not 28 constitutionally and prudentially ripe for court adjudication, see Doc 14 at 6-10. Subsequently issued Ninth Circuit precedent prevents the Court from adopting this 1 portion of the R&R. In July 2019, just weeks after the R&R issued, the Circuit issued 2 Bottinelli v. Salazar, 929 F.3d 1196 (9th Cir. 2019) (affirming the denial of federal 3 prisoners’ section 2241 habeas petition contending that this amendment to the 4 goodtime-credit provision required BOP to re-calculate their sentences immediately). 5 In the wake of Bottinelli, a Ninth Circuit district court confronted with this 6 claim regarding the effective date of this First Step Act amendment 7 need not independently analyze this question of statutory interpretation, 8 because the Ninth Circuit settled the matter . . . . In Bottinelli, the Court 9 of Appeals denied the joint petition of eight federal inmates, and held 10 that the First Step Act’s ‘goodtime fix’ is not immediately effective but is subject to the effective-date provision. The Court of Appeals rejected 11 the petitioner’s arguments based on the language and structure of the 12 statute, [929 F.3d at 1198-1201], and those based on constitutional 13 considerations, [929 F.3d at 1201-02]. The opinion thus forecloses all the arguments the petitioner makes here. 14 * * * 15 Pursuant to the Ninth Circuit’s ruling in Bottinelli, the undersigned must 16 reject the petitioner’s claim that he has been wrongly denied the immediate benefit of the First Step Act’s amendment to the method for 17 calculating goodtime credit. That amendment does not become effective 18 until the establishment of the required “risks and needs assessment 19 system” by the Attorney General. Bottinelli, [929 F.3d at 1202]. 20 Accordingly, no rights of petitioner’s have been violated and the petition 21 must be dismissed [denied for lack of merit]. 22 23 US v. Pratt, 2019 WL 3229617 (E.D. Cal. July 18, 2019) (Claire, M.J.), R&R 24 adopted, 2019 WL 3769079 (E.D. Cal. Aug. 9, 2019) (Shubb, J.); see also US v. 25 Turnquist, 773 F. App’x 413 (9th Cir. 2019) (following Bottinelli to affirm denial of 26 section 2241 claims predicated on amendment to FSA’s goodtime credit provision).1 27 28 1 (continued...) 2 1 A federal court lacks subject-matter jurisdiction over claims that are not 2 yet ripe, and “it would be improper for the court to take any action on the unripe 3 claims”, Harbor Lands LP v. City of Blaine, Washington, 2008 WL 5130049, *4 4 (W.D. Wash. Dec. 5, 2008) (Richard Jones, J.),2 yet the Ninth Circuit had no 5 problem adjudicating this same habeas claim on the merits in Bottinelli v. 6 Salazar, 929 F.3d 1196 (9th Cir. 2019) (i.e., the claim that the BOP violates a federal 7 prisoner’s Equal Protection and Due Process rights by refusing to apply the goodtime- 8 credit amendment on its enactment date rather than the later date when the US 9 Attorney General issues assessment guidelines or was due to issue such guidelines). 10 Accordingly, the Bottinelli panel necessarily implicitly determined that the 11 claim was ripe, because otherwise the panel could not have decided the merits. 12 See Entek GRB, LLC v. Stull Ranches, LLC, 113 F. Supp.3d 1113, 1123 (D. Colo. 13 2015) (“Although the . . . Circuit’s opinion did not state that Count 3 constituted an 14 actual case or controversy, the . . . Circuit decided Count 3 on the merits. It could not 15 have reached the merits without first assuring itself of its own jurisdiction. Thus, 16 because the . . . Circuit reached the merits of Count 3, it implicitly decided that Count 17 3 was ripe for judicial resolution.”) (citing Cunningham v. BHP Petroleum Great 18 Britain PLC, 427 F.3d 1238, 1245 (10th Cir. 2005)) (emphasis added), aff’d, 840 F.3d 19 20 1(...continued) See also Soundingsides v. Jacques, 2019 WL 3428747, *2 (W.D. Wash. July 30, 2019) (John 21 Coughenour, J.) (“In Bottinelli v. Salazar, the Ninth Circuit definitively addressed the issue of when 22 section 102(b)(1) applies. * * * Therefore, the Court finds that § 102(b)(1) of the FSA takes effect on July 19, 2019, not December 21, 2018.”); Turner v. Jacques, 2019 WL 3428762 (W.D. Wash. 23 July 30, 2019) (same); Corbett v. Jacquez, 2019 WL 3412745, *1 (W.D. Wash. July 29, 2019) (Zilly, 24 J.) (“Because the Court of Appeals has fixed the effective date of the First Step Act’s revisions to goodtime credit calculations, the Court must adhere to that effective date and dismiss Petitioner’s 25 claims.”); Lindamood v. Jacquez, 2019 WL 3412893 (W.D. Wash. July 29, 2019) (same). 26 2 Accord Southern Utah Wilderness Alliance v. Sierra, 2008 WL 3925216, *4 (D. Utah Aug. 27 20, 2008) (“Plaintiffs’ claims must be ripe for this court to assert subject[-]matter jurisdiction”, and 28 “this court cannot proceed to the merits of Plaintiffs’ claims if it lacks jurisdiction”) (citing Sinochem Int’l Co., Ltd. v. Malaysia Int’l Shipping Corp., 549 U.S. 422, 127 S. Ct. 1184, 1191 (2007)). 3 1 | 1239 (10™ Cir. 2016). The Court discerns no basis on which to distinguish the 2 || Bottinelli case legally or factually from our case so as to render it inapplicable here, 3 || so Bottinelli is precedentially binding. 4 This means that the Court cannot adopt the R&R’s conclusion that this FSA 5 || good-time amendment claim is not ripe. Instead of dismissing this habeas claim 6 || merely without prejudice due to unripeness, Bottinelli requires the Court to deny the 7 || claim for lack of merit and thus dismiss the action with prejudice. 8 9 ORDER 10 The Report and Recommendation [Doc #14] is ADOPTED in part: 11 The Court adopts the portion of the R&R which holds that this habeas claim 12 || is not subject to dismissal for failure to exhaust prison remedies (Doc 14 at 4-5). 13 The Court declines to adopt the portion of the R&R which suggested that this 14 || habeas claim is subject to dismissal because the claim 1s not ripe (Doc 14 at 6-10) and 15 || the remainder of the R&R (Doc 14 at 10-12). 16 The habeas corpus petition [Doc #1] is DENIED for lack of merit. 17 Petitioner’s motion to reduce sentence [Doc #2] is DENIED. 18 Respondent’s motion to dismiss the petition [Doc #10] is GRANTED in 19 | part and DENIED in part. Judgment will be entered consistent with this Order.’ 20 This action is DISMISSED with prejudice & terminated (JS-6). 21 IT IS SO ORDERED. 22 . 23 || Dated: August 27, 2019 Valve baler (pte 24 The Hon. Valerie Baker Fairbank 35 Senior United States District Judge 26 27 |} ——_—_—————_ 28 Petitioners seeking habeas relief pursuant to 28 U.S.C. § 2241 do not need a COA in order to appeal the denial or dismissal of their claims. See Khan v. Langford, 2018 WL 1271204, *2 n.1 (C.D. Cal. Mar. 8, 2018) (relying on Harrison v. Ollison, 519 F.3d 952, 958 (9" Cir. 2008)).