1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 VIDAL MORALES, No. 1:22-cv-01592-SKO (HC) 12 Petitioner, ORDER GRANTING RESPONDENT’S

MOTION TO DISMISS, DISMISSING

13 v. PETITION FOR WRIT OF HABEAS

CORPUS, AND DIRECTING CLERK OF

14 WARDEN, FCI-MENDOTA, COURT TO ENTER JUDGMENT 15 Respondent. [Doc. 16] 16 17 Petitioner is a federal prisoner proceeding pro se and in forma pauperis with a petition for 18 writ of habeas corpus pursuant to 28 U.S.C. § 2241. Both parties having consented to the 19 jurisdiction of the Magistrate Judge, on February 2, 2023, the case was assigned to the 20 undersigned for all further proceedings pursuant to 28 U.S.C. § 636(c)(1). (Docs. 7, 8, 9.) 21 On December 13, 2022, Petitioner filed the instant habeas petition. (Doc. 1.) On May 10, 22 2023, Respondent filed a motion to dismiss the petition. (Doc. 16.) Respondent contends the 23 petition should be dismissed for lack of jurisdiction and failure to exhaust administrative 24 remedies. (Doc. 16.) Petitioner did not file an opposition. Having reviewed the pleadings, the 25 Court will GRANT Respondent’s motion to dismiss and DISMISS the petition. 26 DISCUSSION 27 I. Motion to Dismiss 28 The Ninth Circuit has allowed respondents to file a motion to dismiss in lieu of an answer. 1 See, e.g., O’Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990) (using Rule 4 to evaluate 2 motion to dismiss petition for failure to exhaust state remedies); White v. Lewis, 874 F.2d 599, 3 602-03 (9th Cir. 1989) (using Rule 4 as procedural grounds to review motion to dismiss for state 4 procedural default); Hillery v. Pulley, 533 F.Supp. 1189, 1194 & n.12 (E.D. Cal. 1982) (same). 5 The Court will review the motion under Rule 4 standards. See Hillery, 533 F. Supp. at 1194 & n. 6 12. 7 II. Background 8 Petitioner is serving a 300-month term of imprisonment for his conviction of conspiracy to 9 distribute controlled substances in violation of 21 U.S.C. §§ 846, 841. (Doc. 16-1 at 2-3.1) 10 Petitioner is incarcerated at Federal Correctional Institution in Mendota, California. In his 11 petition, Petitioner claims that the Bureau of Prisons (“BOP”) determined him ineligible for First 12 Step Act (“FSA”) credits because he is subject to an immigration detainer. (Doc. 1 at 6.) 13 According to BOP records, Petitioner has been determined ineligible to apply FSA time credits to 14 his sentence not because of an immigration detainer but because he is subject to a “final order of 15 removal.” (Doc. 16-1 at 24.) He has a projected release date of January 3, 2035. (Doc. 16-1 at 16 11.) 17 According to the BOP’s records of its Administrative Remedy Program, Petitioner has 18 never submitted an Administrative Remedy Request with respect to the BOP’s calculation of FSA 19 time credits. (Doc. 16-1 at 3-4.) 20 III. The First Step Act 21 The First Step Act was enacted on December 21, 2018, and implemented a number of 22 prison and sentencing reforms, including computation of good time credits, reducing and 23 restricting mandatory minimum sentences, safety valve eligibility, retroactive application of the 24 Fair Sentencing Act, and the availability of early release. First Step Act of 2018, Pub. L. No. 115- 25 391, 132 Stat. 5194 (2018). 26 Under the First Step Act, prisoners “who successfully complete[ ] evidence-based 27

28 1 Citations are to ECF pagination unless noted. 1 recidivism reduction programming or productive activities” “shall earn 10 days of time credits for 2 every 30 days of successful participation.” 18 U.S.C. § 3632(d)(4)(A). A prisoner determined “to 3 be at a minimum or low risk for recidivating, who, over 2 consecutive assessments, has not 4 increased their risk of recidivism, shall earn an additional 5 days of time credits for every 30 days 5 of successful participation in evidence-based recidivism reduction programming or productive 6 activities.” 18 U.S.C. § 3632(d)(4)(A)(ii). 7 The BOP determined that Petitioner was eligible to earn FTCs pursuant to the First Step 8 Act, but the BOP determined that Petitioner was not eligible to have FTCs applied to his 9 sentence. The BOP’s determination is correct. According to the First Step Act,

10 A prisoner is ineligible to apply time credits under subparagraph (C) if the prisoner is the subject of a final order of removal under any provision of the immigration laws (as such 11 term is defined in section 101(a)(17) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(17))). 12 13 18 U.S.C. § 3632(d)(4)(E)(i) (emphasis added). The statute is clear that Petitioner is not eligible 14 to have FTCs applied to his sentence because he is subject to a final order of removal under 15 immigration laws. Thus, Respondent is correct that Petitioner is statutorily barred and has no 16 lawful basis to claim application of FTCs against his sentence. 17 IV. Exhaustion 18 Before filing a petition for writ of habeas corpus, a federal prisoner challenging any 19 circumstance of imprisonment must first exhaust all administrative remedies. Martinez v. 20 Roberts, 804 F.2d 570, 571 (9th Cir. 1986); Chua Han Mow v. United States, 730 F.2d 1308, 21 1313 (9th Cir. 1984); Ruviwat v. Smith, 701 F.2d 844, 845 (9th Cir. 1983). The requirement that 22 federal prisoners exhaust administrative remedies before filing a habeas corpus petition was 23 judicially created; it is not a statutory requirement. Brown v. Rison, 895 F.2d 533, 535 (9th Cir. 24 1990). Thus, “because exhaustion is not required by statute, it is not jurisdictional.” Id. If 25 Petitioner has not properly exhausted his claims, the district court, in its discretion, may either 26 “excuse the faulty exhaustion and reach the merits or require the petitioner to exhaust his 27 administrative remedies before proceeding in court.” 28 The first step in seeking administrative remedies is a request for informal resolution. 28 1 C.F.R. § 542.13. When informal resolution procedures fail to achieve sufficient results, the BOP 2 makes available to inmates a formal three-level administrative remedy process: (1) a Request for 3 Administrative Remedy (“BP-9”) filed at the institution where the inmate is incarcerated; (2) a 4 Regional Administrative Remedy Appeal (“BP-10”) filed at the Regional Office for the 5 geographic region in which the inmate’s institution is located; and (3) a Central Office 6 Administrative Remedy Appeal (“BP-11”) filed with the Office of General Counsel. 28 C.F.R. § 7 542.10 et seq. 8 According to Respondent, Petitioner has never requested relief through the BOP’s 9 administrative remedy process with respect to FTCs. Thus, the claims are unexhausted. The 10 exhaustion requirement “is not lightly to be disregarded.” Murillo v. Mathews, 588 F.2d 759, 762, 11 n.8 (9th Cir. 1978) (citation omitted). A “key consideration” in exercising such discretion is 12 whether “relaxation of the requirement would encourage the deliberate bypass of the 13 administrative scheme[.]” Laing v. Ashcroft, 370 F.3d 994, 1000 (9th Cir. 2004) (internal 14 quotation marks omitted). The exhaustion requirement should not be excused in this case because 15 Petitioner has deliberately bypassed the administrative scheme. Had he properly sought 16 administrative relief, the BOP would have advised him of his immigration status and his 17 ineligibility for application of FTCs pursuant to 18 U.S.C. § 3632(d)(4)(E)(i). 18 ORDER 19 Accordingly, IT IS HEREBY ORDERED: 20 1) Respondent’s motion to dismiss the petition is GRANTED; 21 2) The petition for writ of habeas corpus is DISMISSED WITH PREJUDICE; and 22 3) The Clerk of Court is DIRECTED to enter judgment and close the case. 23

IT IS SO ORDERED.

24

25 Dated: June 20, 2023 /s/ Sheila K. Oberto .

UNITED STATES MAGISTRATE JUDGE

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