1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CHARLES HEAD, No. 1:22-cv-01512-HBK (HC) 12 Petitioner, OPINION AND ORDER GRANTING

RESPONDENT’S MOTION TO DISMISS1

13 v. (Doc. No. 10) 14

WARDEN, FCI MENDOTA,

15 Respondent. 16 17 Petitioner Charles Head (“Petitioner”), a federal inmate, initiated this action on November 18 22, 2022 by filing a pro se petition for writ of habeas corpus under 28 U.S.C. § 2241, while he 19 was incarcerated at Federal Correctional Institution (FCI) Mendota, located in Fresno County, 20 California, which is within the venue and jurisdiction of this Court. (Doc. No. 1, “Petition"). The 21 Petition raises two claims: (1) the Bureau of Prisons (BOP) policy violated the First Step Act of 22 2018 because it prevented him from earning federal time credits (“FTCs”) for participating in 23 evidence-based recidivism reduction programs of his own choosing that were not recommended 24 for him under the PATTERN system; and (2) BOP policy violates the First Step Act of 2018 by 25 excluding him from earning FTCs while he chose to “opt out” of the Inmate Financial 26 Responsibility Program (“IFRP”). (Doc. No. 1 at 6, 10-13); see 18 U.S.C. § 3632(d)(4)(A), (C) 27 1 Both parties have consented to the jurisdiction of a magistrate judge, in accordance with 28 U.S.C. § 28 636(c)(1). (Doc. No. 9). 1 (providing that FTCs earned from completion of evidence-based recidivism reduction programs 2 (EBBRs) and productive activities (PAs) shall be applied toward time in prerelease custody or 3 supervised release). Petitioner provides no specific number of FTCs to which he is entitled; 4 rather, he asks the Court to “enjoin” the BOP to comply with the First Step Act by (1) permitting 5 eligible inmates to earn FTCs for any EBRR or PA program they choose, and (2) compelling the 6 BOP to allow him to earn FTCs regardless of whether he has “opted out” as defined by BOP 7 policy “(i.e. by being in [IFRP] refusal status).” (Doc. No. 1 at 7). Petitioner admits he did not 8 exhaust his administrative remedies and argues exhaustion is futile because he is challenging a 9 policy. (Id. at 7). 10 In response, Respondent filed a Motion to Dismiss with Appendix on February 10, 2023. 11 (Doc. Nos. 10, 10-1). Respondent seeks dismissal of Petition because this Court lacks statutory 12 authority under § 2241 to compel discretionary action via declaratory and advisory opinions, and 13 because Petitioner failed to exhaust his administrative remedies. (Doc. No. 8 at 2). Moreover, 14 Respondent argues “Petitioner’s demand that this Court legislate and manage BOP’s discretionary 15 authority generally, and particularly for Petitioner, is without legal merit,” and that Petitioner 16 improperly demands this Court to “accommodate his violation of district court judgment and 17 commitment orders regarding restitution payments (and to facilitate his refusal to participate in 18 BOP’s IFRP to aid in district court restitution order compliance).” (Id.). On March 1, 2023, 19 Petitioner filed a “Supplement” to the Petition, and on July 7, 2023 he filed a “Motion for Status 20 and Notice of Change of Address.” (Doc. Nos. 11, 13). On August 16, 2023, the Court entered 21 an order striking the “Supplement” as procedurally deficient, and granting Petitioner leave to file 22 a first amended petition or respond to the pending Motion to Dismiss. (Doc. No. 14). Petitioner 23 did not file a first amended petition or a response to the Motion to Dismiss, and the time for doing 24 so has expired. (See Doc. No. 14, advising Petitioner that he could deliver either a first amended 25 petition or a response to the pending Motion by September 1, 2023). For the reasons set forth 26 more fully herein, the Court grants Respondent’s Motion to Dismiss. 27 //// 28 //// 1 I. BACKGROUND 2 A. Procedural History 3 In 2013, a jury convicted Petitioner of multiple counts of mail fraud in violation of 18 4 U.S.C. § 1341, and conspiracy to commit mail fraud in violation of 18 U.S.C. § 1349, in two 5 related criminal cases. Petitioner is currently serving an aggregated 420-month sentence imposed 6 by the United States District Court for the Eastern District of California. See United States v. 7 Head et al., 2:08-cr-00093-KJM, Crim. Doc. Nos. 773, 983 (E.D. Cal.), United States v. Head et. 8 al., 2:08-cr-00116-KJM, Crim. Doc. Nos. 463, 583 (E.D. Cal.).2 At the time he filed the Petition, 9 Petitioner was incarcerated at FCI Mendota. (Doc. No. 10-1 at 3); (see also Doc. No. 12 (notice 10 of Petitioner’s change of address to FCI Englewood in Littleton, Colorado). Petitioner’s current 11 projected release date, including adjustments for possible good time credits is February 14, 2041. 12 (Doc. No. 10-1 at 3, 14). He has earned 175 FTCs toward RRC or home confinement and 365 13 FTCs toward early supervised release; however, he is ineligible to apply time credits as he has an 14 unresolved pending charge. (Id. at 9, 28). 15 II. APPLICABLE LAW AND ANALYSIS 16 Under Rule 4, if a petition is not dismissed at screening, the judge “must order the 17 respondent to file an answer, motion, or other response” to the petition. R. Governing 2254 Cases 18 4. The Advisory Committee Notes to Rule 4 state that “the judge may want to authorize the 19 respondent to make a motion to dismiss based upon information furnished by respondent.” A 20 motion to dismiss a petition for writ of habeas corpus is construed as a request for the court to 21 dismiss under Rule 4 of the Rules Governing Section 2254 Cases. O’Bremski v. Maass, 915 F.2d 22 418, 420 (9th Cir. 1990). Under Rule 4, a district court must dismiss a habeas petition if it 23 “plainly appears” that the petitioner is not entitled to relief. See Valdez v. Montgomery, 918 F.3d 24 687, 693 (9th Cir. 2019); Boyd v. Thompson, 147 F.3d 1124, 1127 (9th Cir. 1998). 25 A. Failure to Exhaust Administrative Remedies 26 “Federal prisoners [generally] are required to exhaust their federal administrative 27 2 The undersigned cites to the record in Petitioner’s underlying EDCA criminal case as “Crim. Doc. No. 28 _.”. 1 remedies prior to bringing a petition for a writ of habeas corpus in federal court.” Martinez v. 2 Roberts, 804 F.2d 570, 571 (9th Cir. 1986); see also Ward v. Chavez, 678 F.3d 1042 (9th Cir. 3 2012). However, the requirement that federal prisoners exhaust administrative remedies before 4 filing a habeas corpus petition was judicially created; it is not a statutory requirement. Brown v. 5 Rison, 895 F.2d 533, 535 (9th Cir. 1990), overruled on other grounds by Reno v. Koray, 515 U.S. 6 50, 54-55 (1995). Because exhaustion is not required by statute, it is not jurisdictional. Id. (citing 7 Morrison-Knudsen Co., Inc. v. CHG Int’l, Inc., 811 F.2d 1209, 1223 (9th Cir. 1987)). If 8 petitioner has not properly exhausted his claims, the district court, in its discretion, may 9 “determine whether to excuse the faulty exhaustion and reach the merits or require the petitioner 10 to exhaust his administrative remedies before proceeding in court.” Id. 11 Requiring a petitioner to exhaust administrative remedies (1) aids judicial review “by 12 allowing the appropriate development of a factual record in an expert forum,” (2) conserves “the 13 court's time because of the possibility that the relief applied for may be granted at the 14 administrative level,” and (3) allows “the administrative agency an opportunity to correct errors 15 occurring in the course of administrative proceedings.” Ruviwat v. Smith, 701 F.2d 844, 845 (9th 16 Cir. 1983) (per curiam). Dismissal is appropriate when a federal prisoner has not exhausted the 17 administrative remedies made available by the BOP. See Quinonez v. McGrew, 649 F. App'x 475 18 (9th Cir. 2016) (affirming district court's dismissal of a § 2241 petition where the petitioner “did 19 not complete any level of the BOP's Administrative Remedy Program and there is no indication 20 that his pursuit of those remedies would be futile”). However, the Court may waive the 21 exhaustion requirement when administrative remedies are inadequate, irreparable injury may 22 occur without immediate judicial relief, or exhaustion otherwise would be futile. Laing v. 23 Ashcroft, 370 F.3d 994, 1000-01 (9th Cir. 2004) (“[D]istrict court’s habeas jurisdiction under 28 24 U.S.C. § 2241 is ordinarily reserved for instances in which no other judicial remedy is 25 available.”). 26 When seeking administrative remedies, an inmate must first attempt informal resolution 27 (BP-8). 28 C.F.R. § 542.13. Thereafter, the BOP makes available a formal three-level 28 Administrative Remedy Program: (1) a Request for Administrative Remedy (BP-9) filed at the 1 institution where the inmate is incarcerated; (2) a Regional Administrative Remedy Appeal (BP- 2 10) filed at the Regional Office for the geographic region in which the inmate's institution is 3 located; and (3) a Central Office Administrative Remedy Appeal (BP-11) filed with the Office of 4 General Counsel. 28 C.F.R. § 542.10 et seq. 5 Here, Petitioner concedes that he did not present either of his two grounds for relief at any 6 level because he is challenging a BOP policy, and therefore any appeal would be futile. (Doc. 7 No. 1 at 7). However, the Petition also makes assertions regarding the accrual, or lack thereof, of 8 FTCs for Petitioner’s own participation in classes of his choosing, including the “Threshold 9 program” and paralegal course listed in his Petition, and the restriction on earning FTCs for 10 programs Petitioner himself ”opts out” of participating in, such as the IFRP. (Doc. No. 1 at 6). 11 Therefore, Petitioner does not solely challenge a matter of policy. As argued by Respondent, 12 “[f]or petitions challenging BOP individualized sentence calculations and offsets (projected and 13 or [sic] earned), enforcing exhaustion requirements is essential at least to allow the administrative 14 agency to develop a factual record, apply its expertise, and correct its own errors, thereby 15 conserving court resources and avoiding unnecessary judicial intervention.” (Doc. No. 10 at 4 16 (citing Ruviwat, 701 F.2d at 845)). The Court further notes that district courts in the Ninth Circuit 17 have declined to waive exhaustion where petitioner made claims of futility in the context of 18 earned time credits under the FSA. See, e.g., Jones v. Thompson, 2021 WL 5397711, at *2 (Nov. 19 18, 2021) (noting district courts in this circuit “to consider the exhaustion issue as it applies to 20 similar claims for earned time credits under the First Step Act have declined to waive 21 exhaustion”); Baldovinos-Molina v. Birkholz, 2023 WL 4373306, at *2 (C.D. Cal. May 16, 2023) 22 (collecting cases and noting that “excusal of the exhaustion requirement as to petitioner may 23 encourage others similarly situated to bypass the requirement”). 24 This Court finds an assessment of whether Petitioner was entitled to accrue FTCs under 25 the FSA for his “chosen” programming, and whether he is entitled to earn FTCs for programs he 26 “opts out” of, should be undertaken by the agency in the first instance. Thus, the exhaustion 27 requirement cannot be excused in this case. Thus, the Petition is subject to dismissal because 28 neither ground is exhausted. 1 B. BOP Policy 2 The First Step Act (FSA), enacted December 21, 2018, provided for considerable changes 3 to the federal criminal code, including several prison and sentencing reforms. First Step Act of 4 2018, Pub. L. No. 115-391, 132 Stat. 5194 (2018). One such reform under the First Time Act 5 entailed the implementation of Federal Time Credits (FTCs). 18 U.S.C. § 3632(d)(4)(A). 6 Essentially, an inmate “who successfully completed evidence-based recidivism reduction 7 programming or productive activities” “shall earn 10 days of time credits for every 30 days of 8 successful participation.” Id. These FTCs earned by eligible inmates are “applied toward time in 9 prerelease custody or supervised release.” Id. 10 The FSA additionally authorized the BOP to use a risk and needs assessment system, 11 “PATTERN,” to designate a prisoner with a minimum, low, medium, or high-risk score. United 12 States v. DeCaro, No. 2022 WL 4395905, at *1 n.1 (E.D. Mo. Aug. 23, 2022). Inmates who 13 receive a minimum or low-risk score over two consecutive assessments earn an additional five 14 days of time credits for every 30 days of successful participation in evidence-based recidivism 15 reduction (EBBR) programming or productive activities (PA). 18 U.S.C. § 3632(d)(4)(A)(ii); 16 Orihuela v. Engleman, 2022 WL 18106676, at *1 (C.D. Ca. Nov. 3, 2022) (“A prisoner’s 17 PATTERN score may affect the rate at which he earns FTC for his participation in EBRRs and 18 Pas.”). 19 Inmates may begin earning FTCs once their term begins, but an inmate cannot earn FTCs 20 for programming or activities for EBBR programing or PA in which he or she participated in 21 prior to the enactment of the FSA on December 21, 2018. 28 C.F.R. § 523.42. An inmate, 22 however, can earn retroactive application of FTCs for EBRR programming or PAs in which he or 23 she participated in from December 21, 2018, to January 13, 2022. Id. 24 Petitioner argues that BOP policy, specifically BOP Program Statement 5410.01, 25 “unlawfully restricts” him from (1) earning FTCs under the First Step Act for participating in 26 programs not recommended under the PATTERN system, and (2) earning FTCs under the First 27 Step Act when he “opts out” of participation in programs such as the IFRP. (Doc. No. 1 at 6). 28 Petitioner asks the Court to “enjoin” the BOP to comply with the First Step Act by allowing 1 inmates to earn FTCs for any EBRR or PA program of their choosing, and “compel” the BOP to 2 allow Petitioner to earn FTCs regardless of whether he has “opted out” “as defined by BOP 3 policy (i.e. by being in [IFRP] refusal status).” (Id. at 7). In support of this argument, Petitioner 4 filed a declaration stating he has been participating in the “Threshold Program” and he earned a 5 paralegal certificate in October 2022, but he was informed by his case manager that he did not 6 receive FTCs for these programs because they were not recommended for him “via the 7 PATTERN system.” (Id. at 15-16). Petitioner also notes that he would be placed on “refusal 8 status” if he did not participate in the IFRP, but “[n]owhere does the FSA mention ‘opting out’ or 9 the requirement that an inmate pay restitution under the BOP [IFRP] program in order to receive 10 [FTCs].” (Id. at 11). 11 A district court has jurisdiction to review claims alleging that BOP undertook action that 12 is contrary to established federal law, violates the U.S. Constitution, or exceeds its statutory 13 authority vested in the agency by Congress. Moon v. Thomas, 787 F. Supp. 2d 1154, 1160 (D. 14 Or. Apr. 1, 2011); Reeb v. Thomas, 636 F.3d 1224, 1228 (9th Cir. 2011) (finding that while 15 judicial review is available for BOP actions contrary to federal law or in violation of the 16 Constitution, or claims the BOP exceeds statutory authority, federal courts lack jurisdiction to 17 review BOP’s individualized determinations made pursuant to 18 U.S.C. § 3632). 18 Here, Petitioner cites to no portion of the FSA to support his argument that he is entitled 19 under the statute to “choose” the EBRR programming and PAs that would qualify to earn FTCs, 20 or that he is entitled to earn FTCs regardless of refusal to participate in certain programs. To the 21 contrary, 18 U.S.C. § 3632 mandates that the Attorney General, through the BOP and with other 22 agencies and entities, develop a “risk and needs assessment system” that, in relevant part, 23 “determine[s] the type and amount of evidence-based recidivism reduction programming that is 24 appropriate for each prisoner and assign each prisoner to such programming accordingly, and 25 based on the prisoner’s specific criminogenic needs.” 18 U.S.C. § 3632(a)(3), (b). Further, in 26 2022 the BOP promulgated regulations for determining “successful participation” in EBRR 27 programming or PAs that requires “a determination by Bureau staff that an eligible inmate has 28 participated in the EBRR programs or PAs that BOP has recommended based on the inmate’s 1 | individualized risk and needs assessment, and has complied with the requirements of each 2 | particular EBRR Program or PA.” (Doc. No. 10 at 6 (citing 28 C.F.R. § 523.41(c)(2)); (see also 3 | Doc. No. 10-1 at 7-8 (citing BOP Program Statement 5410.01 at 11) (‘While [EBRR programs or 4 | PAs] are voluntary, the refusal to participate can result in the loss of certain benefits including the 5 || inability to earn FTCs.”)). 6 As correctly pointed out by Respondent, Petitioner’s claim that BOP action is contrary to 7 | the FSA because he is restricted from earning FTCs for participating in programs of his choosing 8 | not recommended under the PATTERN system, and restricted from earning FTCs if he opts out 9 | of certain programs such as the IFRP, is without merit because “[i]t is entirely appropriate, as 10 || sanctioned by the FSA and the applicable CFR, for the BOP to limit ability to earn time credits, 11 including for factors such as an inmates refusal to participate in IFRP (the Inmate Financial 12 | Responsibility Program), which may also be in violation of district court orders (e.g., the court- 13 | of-conviction judgment and commitment order).” (Doc. No. 10 at 6). Thus, even if the Court 14 | were to waive the exhaustion requirement, Petitioner’s claims nonetheless are without merit. 15 Accordingly, it is ORDERED: 16 1. Respondent’s Motion to Dismiss (Doc. No. 10) is GRANTED. 17 2. The Petition is DISMISSED as unexhausted and otherwise without merit. 18 3. The Clerk of Court is directed to terminate any pending motions and close this case. 19 | Dated: _ September 28, 2023 Wiha. □□ fares Zackte 21 HELENA M. BARCH-KUCHTA

UNITED STATES MAGISTRATE JUDGE

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