1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 ALFRED MALIT, Case No. 2:21-cv-01228-JAM-JDP (HC) 11 Petitioner, FINDINGS AND RECOMMENDATIONS

THAT RESPONDENT’S MOTION TO

12 v. DISMISS BE GRANTED 13 PAUL THOMPSON, OBJECTIONS DUE IN FOURTEEN DAYS 14 Respondent. ECF No. 6 15 16 Petitioner Alfred Malit, a federal prisoner, filed a petition for a writ of habeas corpus 17 under 28 U.S.C. § 2241. ECF No. 1. He argues that he is entitled to release under the First Step 18 Act of 2018 (“FSA”). Id. at 2. Respondent has filed a motion to dismiss, ECF No. 6, and 19 petitioner has filed an opposition, ECF No. 7. Respondent has not filed a reply, and the deadline 20 for doing so has passed. For the reasons stated below, I recommend that respondent’s motion be 21 granted. 22 No habeas rule specifically applies to motions to dismiss. See Hillery v. Pulley, 533 F. 23 Supp. 1189, 1194 (E.D. Cal. 1982) (“Motion practice in habeas corpus is not specifically 24 provided for in the rules but must be inferred from their structure and the Advisory Committee 25 Notes.”). Following an approach taken by other courts in this district, I conclude that Rule 4 of 26 the Rules Governing Section 2254 Cases is the proper analytical framework for a motion to 27 dismiss a section 2241 petition. See, e.g., Ram v. Sacramento Cty., No. 2:15-cv-2074-WBS-DB, 28 2017 U.S. Dist. LEXIS 85123 at *4 (E.D. Cal. 2017). Under Rule 4, I evaluate whether it 1 “plainly appears” that the petitioner is not entitled to relief and, if so, recommend dismissal of the 2 petition. 3 As stated above, petitioner argues that he is entitled to early release credits under the FSA. 4 He contends that if his credits were properly applied, he would be scheduled for release on 5 February 10, 2022. ECF No. 1 at 10. In accordance with this updated release date, petitioner 6 argues that respondent should have already placed him in a Residential Drug Abuse Program, the 7 completion of which is a prerequisite for early release. Respondent raises various arguments in 8 favor of dismissal, the most compelling of which is petitioner’s failure to exhaust administrative 9 remedies before filing this petition. Even if exhaustion were excused, however, dismissal of the 10 petition would still be appropriate based on want of ripeness. 11 Federal prisoners, like their state counterparts, are required to exhaust administrative 12 remedies before filing habeas petitions. See Martinez v. Roberts, 804 F.2d 570, 571 (9th Cir. 13 1986). Petitioner acknowledges that he failed to do this, but argues that his non-exhaustion 14 should be excused because attempting to exhaust his remedies would have been futile in the face 15 of established Bureau of Prisons Policy. ECF No. 1 at 2. He also contends that exhaustion is not 16 required where his claims turn solely on issues of statutory construction. Id. Finally, he argues 17 that he would suffer irreparable harm if he were required to exhaust insofar as completing the 18 exhaustion process would delay the filing of his petition by as much as a year. Id. at 3.1 Other 19 judges in this district have rejected these arguments, however, and required federal prisoners to 20 exhaust their FSA-related claims. See Hand v. Merlak, No. 1:19-cv-01144-SAB-HC, 2020 U.S. 21 Dist. LEXIS 104271, *10 (E.D. Cal. 2020) (“Given that Petitioner did not provide the BOP an 22 opportunity to consider his ETC claims through the administrative remedy system, the BOP has 23 not denied Petitioner relief based on official BOP policy . . . .”); see also Matecki v. Thompson, 24 No. 2:21-CV-0268-WBS-DMC-P, 2021 U.S. Dist. LEXIS 113102, *8-9 (E.D. Cal. 2021); 25 Smallwood v. Thompson, No. 2:21-CV-0641-JAM-DMC-P, 2021 U.S. Dist. LEXIS 213117, *8-9 26

27 1 Petitioner repeats these arguments in his opposition to the motion to dismiss. ECF No. 7 at 12-14. 28 1 | (E.D. Cal. 2021) (‘Petitioner’s claim of excuse from the requirement to exhaust for futility 2 | (challenge to BOP policy) and for irreparable injury are without merit. These excuse claims in the 3 | context of so-called advanced application of ETC credits under the FSA are erroneous.”). 4 Additionally, petitioner’s claims, even if they were exhausted (or excused from 5 | exhaustion), are not ripe. Congress provided the Bureau of Prisons until January 2022 to phase in 6 || the FSA’s programming to reduce recidivism. See 18 U.S.C. § 3621(h)(2). As Judge Cota 7 | explained in the recently decided Mulholland v. Thompson, “[until that time, [p]etitioner cannot 8 || establish a live case or controversy upon which this Court can be called upon to pass judgment. 9 | Similarly, because the phase-in period has not expired, [p]etitioner can only speculate as to what 10 | the [Bureau of Prisons] may or may not do in his case.” No. 2:21-CV-0374-WBS-DMC-P, 2021 11 | US. Dist. LEXIS 162929, *6 (E.D. Cal. 2021). 12 For the foregoing reasons, I recommend that Respondent’s motion to dismiss, ECF No. 6, 13 | be granted and the petition be dismissed without prejudice. 14 These findings and recommendations are submitted to the U.S. district judge presiding 15 | over the case under 28 U.S.C. § 636(b)(1)(B) and Local Rule 304. Within fourteen days of the 16 | service of the findings and recommendations, the parties may file written objections to the 17 | findings and recommendations with the court and serve a copy on all parties. That document 18 | must be captioned “Objections to Magistrate Judge’s Findings and Recommendations.” The 19 | presiding district judge will then review the findings and recommendations under 28 U.S.C. 20 | § 636(b)C1)(C). 21 | TPIS SO ORDERED. 22 □ 23 || Dated: _ December 13, 2021 ssn (oto. ya

JEREMY D. PETERSON

24 UNITED STATES MAGISTRATE JUDGE 25 26 27 28