1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JOSE JESUS TAPIA PEREZ, No. 1:23-cv-00931-SKO (HC) 12 Petitioner, ORDER DIRECTING CLERK OF COURT

TO ASSIGN DISTRICT JUDGE

13 v.

FINDINGS AND RECOMMENDATION

14 TO DISMISS PETITION FOR WRIT OF

WARDEN, F.C.I. MENDOTA, HABEAS CORPUS

15 Respondent. [TWENTY-ONE DAY DEADLINE] 16

17 18 Petitioner is a federal prisoner proceeding pro se and in forma pauperis with a petition for 19 writ of habeas corpus pursuant to 28 U.S.C. § 2241. 20 On June 21, 2023, Petitioner filed the instant petition in this Court. He is in the custody of 21 the Bureau of Prisons (“BOP”) at FCI-Mendota. He challenges the computation of his federal 22 sentence by the BOP. He claims the BOP wrongfully found him ineligible to receive earned time 23 credits under the First Step Act. The petition is unexhausted. Therefore, the Court will 24 recommend the petition be DISMISSED without prejudice. 25 DISCUSSION 26 I. Exhaustion 27 Before filing a petition for writ of habeas corpus, a federal prisoner challenging any 28 circumstance of imprisonment must first exhaust all administrative remedies. Martinez v. 1 Roberts, 804 F.2d 570, 571 (9th Cir. 1986); Chua Han Mow v. United States, 730 F.2d 1308, 2 1313 (9th Cir. 1984); Ruviwat v. Smith, 701 F.2d 844, 845 (9th Cir. 1983). The requirement that 3 federal prisoners exhaust administrative remedies before filing a habeas corpus petition was 4 judicially created; it is not a statutory requirement. Brown v. Rison, 895 F.2d 533, 535 (9th Cir. 5 1990). Thus, “because exhaustion is not required by statute, it is not jurisdictional.” Id. If 6 Petitioner has not properly exhausted his claims, the district court, in its discretion, may either 7 “excuse the faulty exhaustion and reach the merits or require the petitioner to exhaust his 8 administrative remedies before proceeding in court.” 9 The first step in seeking administrative remedies is a request for informal resolution. 28 10 C.F.R. § 542.13. When informal resolution procedures fail to achieve sufficient results, the BOP 11 makes available to inmates a formal three-level administrative remedy process: (1) a Request for 12 Administrative Remedy (“BP-9”) filed at the institution where the inmate is incarcerated; (2) a 13 Regional Administrative Remedy Appeal (“BP-10”) filed at the Regional Office for the 14 geographic region in which the inmate’s institution is located; and (3) a Central Office 15 Administrative Remedy Appeal (“BP-11”) filed with the Office of General Counsel. 28 C.F.R. § 16 542.10 et seq. 17 Petitioner concedes that he has not administratively exhausted his claims, but he claims 18 exhaustion should be waived for futility because he is challenging an established BOP policy. 19 Petitioner alleges the BOP found him ineligible to earn First Step Act (“FSA”) time credits solely 20 because he has an immigration detainer. Prior to November 18, 2022, the BOP did take the 21 position that inmates with detainers were ineligible for FSA credits. However, on November 18, 22 2022, the BOP issued Program Statement 5410.01 modifying its procedures to allow inmates with 23 detainers to earn FSA credits; the inmates still could not have those credits applied until the 24 detainers were resolved. U.S. Dep't of Justice, Federal Bureau of Prisons, Program Statement No. 25 5410.01, First Step Act of 2018 - Time Credits: Procedures for Implementation of 18 U.S.C. 26 3632(d)(4), at 17 (Nov. 18, 2022), https://www.bop.gov/policy/progstat/5410_01.pdf (last visited 27 June 21, 2023). On February 6, 2023, the BOP issued a change notice to the program statement in 28 which the BOP deleted the requirement that inmates have no detainers in order to have FSA 1 credits applied to their sentence. U.S. Dep't of Justice, Federal Bureau of Prisons, Change Notice 2 to Program Statement No. 5410.01, First Step Act of 2018 - Time Credits: Procedures for 3 Implementation of 18 U.S.C. 3632(d)(4) (Feb. 6, 2023), 4 https://www.bop.gov/policy/progstat/5410.01_cn.pdf (last visited June 21, 2023). Thus, 5 Petitioner is no longer barred pursuant to BOP policy from earning FSA credits and having them 6 applied to his sentence due to the detainer. For this reason, pursuing administrative remedies 7 would not be futile. The Court finds the petition should be dismissed for failure to exhaust. 8 ORDER 9 IT IS HEREBY ORDERED that the Clerk of Court is DIRECTED to assign a district 10 judge to this case. 11 RECOMMENDATION 12 Accordingly, the Court RECOMMENDS that the petition for writ of habeas corpus be 13 DISMISSED without prejudice for failure to exhaust administrative remedies. 14 This Findings and Recommendation is submitted to the United States District Court Judge 15 assigned to this case, pursuant to the provisions of 28 U.S.C. section 636 (b)(1)(B) and Rule 304 16 of the Local Rules of Practice for the United States District Court, Eastern District of California. 17 Within twenty-one (21) days after being served with a copy, Petitioner may file written objections 18 with the Court. Such a document should be captioned “Objections to Magistrate Judge’s Findings 19 and Recommendation.” The Court will then review the Magistrate Judge’s ruling pursuant to 28 20 U.S.C. § 636 (b)(1)(C). Petitioner is advised that failure to file objections within the specified 21 time may waive the right to appeal the Order of the District Court. Martinez v. Ylst, 951 F.2d 22 1153 (9th Cir. 1991). 23

IT IS SO ORDERED.

24

25 Dated: June 22, 2023 /s/ Sheila K. Oberto .

UNITED STATES MAGISTRATE JUDGE

26

27 28