1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 BYRON MITCHELL, Case No. 2:20-cv-02810-JFW-MAA

12 Petitioner, ORDER ACCEPTING REPORT 13 v. AND RECOMMENDATION OF

UNITED STATES MAGISTRATE

14 FELIPE MARTINEZ, JR., Warden, JUDGE 15 Respondent. 16 17 Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition, the other 18 records on file herein, and the Report and Recommendation of the United States 19 Magistrate Judge (“Report and Recommendation” (“R&R”)). 20 The Court also has reviewed Petitioner’s objections to the R&R, which the 21 Court received and filed on August 14, 2020 (“Objections”), as well as 22 Respondent’s August 28, 2020 Response to the Objections (“Response”). (Objs., 23 ECF No. 15; Response, ECF No. 16.) 24 As required by Federal Rule of Civil Procedure 72(b)(3), the Court has 25 engaged in de novo review of the portions of the R&R to which Petitioner 26 specifically has objected. 27 /// 28 1 Petitioner first argues that the Magistrate Judge misconstrued the facts of the 2 case and the relief that Petitioner now seeks. (Objs., at 1–2.) However, the 3 Magistrate Judge acknowledged the relief Petitioner seeks, as follows: 4 Petitioner filed an Opposition, arguing that the Petition 5 continues to present a live controversy because the BOP’s mistake 6 prevented him from participating in RDAP and earning a further 7 sentence reduction. (Opposition, at 2–4.) Petitioner argues that 8 although acceptance into the program is discretionary, the BOP had 9 refused to exercise its discretion in his case because he was not within 10 three years of his initial 2027 release date. (Id., at 4–7.) Petitioner 11 requests to be released on July 28, 2020 as a remedy, asserting that he 12 would have been eligible for release on that date if he had completed 13 RDAP. (Id., at 8–10.) 14 (R&R, at 4.) 15 As part of this first argument, Petitioner states that he “is not asking the 16 Court to order the BOP to accept Petitioner into RDAP or to award him a sentence 17 reduction upon completion of RDAP.” (Objs., at 2 (internal quotation marks 18 omitted)). However, the Magistrate Judge did not state that Petitioner currently 19 seeks admission to the RDAP, but rather reasoned that because this Court lacks 20 jurisdiction to order Petitioner’s admission into RDAP or to order a sentence 21 reduction in the event Petitioner completed RDAP, it also lacks jurisdiction to 22 reduce Petitioner’s sentence based on the BOP’s failure to admit him into RDAP. 23 (Id., at 6.) 24 Petitioner next asserts that he is entitled to a sentence reduction in this case 25 “[b]ecause it ‘is a cardinal principle of American jurisprudence that for every 26 wrong there is a remedy[.]’” (Objs., at 2 (quoting In re Jim Nolker Chevrolet- 27 Buick-Oldsmobile, Inc., 120 B.R. 20, 22 (1990))). However, this general principle 28 1 does not change the fact that the Court lacks jurisdiction to order the particular 2 remedy Petitioner seeks in this case. 3 Petitioner also reiterates an argument he first raised in his Opposition to the 4 Motion to Dismiss: that the BOP did not exercise its discretion in denying 5 Petitioner admission to RDAP, but rather determined that he was ineligible for the 6 program based on the BOP’s prior miscalculation of his sentence. (Objs., at 2.) 7 Although this may be factually correct, it does not change the result: because the 8 nature of the decision Petitioner challenges is an individualized and discretionary 9 one, this Court lacks jurisdiction to order the requested relief. See Reeb v. Thomas, 10 636 F.3d 1224, 1227 (9th Cir. 2004) (“[A]ny substantive decision by the BOP to 11 admit a particular prisoner unto RDAP, or to grant or deny a sentence reduction for 12 completion of the program, is not reviewable by the district court.”) 13 Next, Petitioner cites two Ninth Circuit cases and one District of Oregon case 14 for the proposition that this Court has jurisdiction to review a certain subset of 15 claims involving allegations that the BOP has exceeded its statutory authority or 16 violated the United States Constitution. (Objs., at 2–3.) However, the cases 17 Petitioner cites in his Objections are distinguishable from his case, which involves 18 an individualized and discretionary RDAP determination, and thus do not persuade 19 this Court that the Magistrate Judge erred in finding Petitioner’s claim to be 20 foreclosed by Reeb.1 21 In Moore v. Winn, 698 F. App’x 485 (9th Cir. 2017) (summary order), the 22 Ninth Circuit remanded for the district court to determine in the first instance 23 whether judicial review of the BOP’s determination was foreclosed under 18 U.S.C. 24 1 The District of Oregon case Petitioner cites, Cozine v. Crabtree, 15 F.Supp.2d 997 25 (D. Or. 1998), lends support to this Court’s jurisdiction to review Petitioner’s initial 26 claim that the BOP erred in calculating his sentence. See Cozine, 15 F.Supp.2d at 1015. However, Cozine is no longer relevant, as the BOP now has corrected its 27 calculation of Petitioner’s sentence, and Cozine did not involve admission into RDAP 28 or any similar BOP program. See Reeb, 636 F.3d at 1228 n.3 (distinguishing Cozine). 1 § 3625. Moore, 698 F. App’x at 486. In Rodriguez v. Copenhaver, 823 F.3d 1238 2 (9th Cir. 2016), the Ninth Circuit held that the district court had jurisdiction to 3 review whether the BOP violated 18 U.S.C. § 3621(b)(4) (“Section 3621(b)(4)”) 4 and constitutional due process when it considered a recused judge’s letter in 5 assigning petitioner’s location of confinement. Rodriguez, 823 F.3d at 1242. As 6 the Ninth Circuit discussed, Section 3621(b)(4) directs the BOP to consider certain 7 factors when designating a prisoner’s facility of confinement, including statements 8 from the sentencing court. Id. at 1242. In Rodriguez, the BOP’s consideration of a 9 letter from a recused judge, rather than the sentencing judge, directly violated that 10 statutory provision. Id. at 1243. The Ninth Circuit also held that the BOP’s 11 consideration of the letter violated due process, noting that the judge who submitted 12 the letter had recused himself because he was a colleague of one Rodriguez’s 13 victims. Id. 14 Here, Petitioner is not raising a claim under Section 3621(b)(4), but rather is 15 arguing that the BOP erred in excluding him from the RDAP program—a claim 16 which is squarely foreclosed by Reeb. See Reeb, 636 F.3d at 1228 (“Accordingly, 17 we hold that federal courts lack jurisdiction to review the BOP’s individualized 18 RDAP determinations made pursuant to 18 U.S.C. § 3621, such as Reeb’s claim 19 herein. Although judicial review remains available for allegations that BOP action 20 is contrary to established federal law, violates the United States Constitution, or 21 exceeds its statutory authority, Reeb’s habeas petition alleges only that the BOP 22 erred in his particular case.”); see also Close v. Thomas, 653 F.3d 970, 974 (9th Cir. 23 2011) (distinguishing Reeb and finding that the district court had jurisdiction where 24 a group of petitioners challenged “the system that BOP uses to rank all RDAP- 25 eligible inmates on the RDAP wait list” as exceeding the BOP’s statutory 26 authority). 27 /// 28 1 In sum, the Court finds no defect of law, fact, or logic in the Report and 2 || Recommendation. The Court concurs with and accepts the findings, conclusions, 3 || and recommendations of the United States Magistrate Judge, and overrules the 4 || Objections. 5 IT THEREFORE IS ORDERED that (1) the Report and Recommendation of 6 || the Magistrate Judge is accepted; and (2) Judgment shall be entered denying the 7 || Petition and dismissing this action without prejudice. 8 9 || DATED: September 16, 2020 10 ade { ) STATES DISTRICT JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28