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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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11 HECTOR ORLANDO BARRAZA Case No. 1:23-cv-00161-SAB-HC

ROMERO,

12 ORDER DISMISSING PETITION FOR Petitioner, WRIT OF HABEAS CORPUS AS MOOT, 13 DENYING RESPONDENT’S MOTION TO v. DISMISS AS MOOT, AND DIRECTING 14 CLERK OF COURT TO CLOSE CASE

WARDEN, FCI MENDOTA,

15 (ECF No. 9) Respondent. 16

17 18 Petitioner is a federal prisoner proceeding pro se with a petition for writ of habeas corpus 19 pursuant to 28 U.S.C. § 2241. The parties have consented to the jurisdiction of a United States 20 Magistrate Judge. (ECF Nos. 5, 7, 8.) 21 I. 22 BACKGROUND 23 In the petition, Petitioner challenges a Federal Bureau of Prisons’ policy that excludes 24 inmates with immigration detainers, such as Petitioner, from applying their First Step Act 25 (“FSA”) Earned Time Credits (“FTCs” or “ETCs”). (ECF No. 1.) Petitioner requests that the 26 Court direct the Federal Bureau of Prison (“BOP”) to immediately calculate and apply all of the 27 FTCs to which he is entitled. (Id. at 7.)1 Respondent has moved to dismiss the petition, arguing, 1 among other grounds, that “Petitioner has failed to exhaust administrative remedies about any 2 policy, disputed program, activity, or FSA ETCs,” “Petitioner is jurisdictionally and statutorily 3 barred from FSA ETC sentence-offsets due to the final order of removal from another federal 4 court,” and the case-and-controversy requirement is not satisfied because Petitioner “has not 5 established via exhaustion that he has earned any FSA ETCs, or that FSA ETCs are owing if he 6 were not a prisoner subject to final order of removal.” (ECF No. 9 at 2, 3 & n.2.) 7 II. 8 DISCUSSION 9 Here, Petitioner challenges BOP Program Statement 5410.01 and states that his claim 10 was not presented in all appeals available to Petitioner because “[a]ny appeal to BOP policy 11 would be futile.” (ECF No. 1 at 6, 7.) On November 18, 2022, the BOP issued Program 12 Statement 5410.01, First Step Act of 2018 - Time Credits: Procedures for Implementation of 18 13 U.S.C. 3632(d)(4), which precluded prisoners with immigration detainers from applying earned 14 time credits. Fed. Bureau of Prisons, Program Statement No. 5410.01, First Step Act of 2018 - 15 Time Credits: Procedures for Implementation of 18 U.S.C. 3632(d)(4) (Nov. 18, 2022), 16 https://www.bop.gov/policy/progstat/5410.01_cn2.pdf (last visited Nov. 3, 2023). On February 17 6, 2023, the BOP issued Change Notice 5410.01 CN-1. Fed. Bureau of Prisons, Change Notice 18 No. 541001 CN-1 (Feb. 6, 2023), https://www.bop.gov/policy/progstat/5410.01_cn2.pdf (last 19 visited Nov. 3, 2023).2 “As a result of Change Notice 5410.01, federal prisoners subject to 20 immigration detainers are no longer automatically prohibited from applying their earned time 21 credits.” Alatorre v. Derr, No. CV 22-00516 JMS-WRP, 2023 WL 2599546, at *5 (D. Haw. Mar. 22 22, 2023). 23 The Court has “an independent duty to consider sua sponte whether a case is moot.” 24 Demery v. Arpaio, 378 F.3d 1020, 1025 (9th Cir. 2004) (citing Dittman v. California, 191 F.3d 25 1020, 1025 (9th Cir. 1999)). Article III of the United States Constitution limits the jurisdiction of 26 2 The Court takes judicial notice of the BOP program statement and change notice. Fed. R. Evid. 201. See United 27 States v. Thornton, 511 F.3d 1221, 1229 n.5 (9th Cir. 2008) (taking judicial notice of BOP program statement); United States v. Raygoza-Garcia, 902 F.3d 994, 1001 (9th Cir. 2018) (“A court may take judicial notice of eee III IOSD SES OI III III IIR I IES IIR (SESS! EIEIO ER EEE

1 | federal courts to “actual, ongoing cases or controversies.” Lewis v. Continental Bank Corp., 494 2|U.S. 472, 477 (1990). “This case-or-controversy requirement subsists through all stages of 3 | federal judicial proceedings,” which “means that, throughout the litigation, the plaintiff ‘must 4 | have suffered, or be threatened with, an actual injury traceable to the defendant and likely to be 5 | redressed by a favorable judicial decision.’” Spencer v. Kemna, 523 U.S. 1, 7 (1998) (quoting 6 | Lewis, 494 U.S. at 477). Here, the petition challenges a policy that is no longer in place, and 7 | there is no indication that any exception to the mootness doctrine is applicable. Accordingly, the 8 | Court finds Petitioner is not entitled to habeas relief and the petition should be dismissed as 9 | moot.? 10 Il. 11 ORDER 12 Accordingly, the Court HEREBY ORDERS: 13 1. The petition for writ of habeas corpus is DISMISSED as MOOT; 14 2. Respondent’s motion to dismiss (ECF No. 9) is DENIED as MOOT; and 15 3. The Clerk of Court is DIRECTED to CLOSE the case. 16 17 IT IS SO ORDERED. DAM Le 1g | Dated: _ November 9, 2023

9 UNITED STATES MAGISTRATE JUDGE

20 21 22 23 24 25 26 | 5 Given that the petition challenges the old policy and in light of the Court’s mootness determination, the Court declines to address Respondent’s grounds for dismissal set forth in the motion to dismiss, including whether 27 | Petitioner is jurisdictionally and statutorily barred from FSA ETC sentence-offsets due to the final order of removal from another federal court.” (ECF No. 9 at 3.) Additionally, the Court notes that this conclusion does not preclude 28 | Petitioner from challenging the current BOP policy in a new petition.