1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 NOE PINEDA-CASTRO, No. 2:23-CV-0490-KJM-DMC-P 12 Petitioner,

ORDER

13 v. and 14 WARDEN – FCI HERLONG,

FINDINGS AND RECOMMENDATIONS

15 Respondent. 16 17 Petitioner, a federal prisoner proceeding pro se, brings this petition for a writ of 18 habeas corpus under 28 U.S.C. § 2241. Pending before the Court is Respondent’s unopposed 19 motion to dismiss. See ECF No. 9. 20 21 I. BACKGROUND1 22 On December 19, 2018, Petitioner was charged in the United States District Court 23 for the Northern District of Texas with scheming to distribute illicit drugs. See ECF No. 9-1 24 (Appendix). Petitioner pleaded guilty and, on September 12, 2019, was sentenced to 87 months 25 in the custody of the Bureau of Prisons (BOP). See id. Petitioner’s current projected release date 26 1 Facts are derived from various court records provided by Respondent in the 27 Appendix filed in support of the motion to dismiss. See ECF No. 9-1. The Court may take judicial notice pursuant to Federal Rule of Evidence 201 of matters of public record. See U.S. v. 28 14.02 Acres of Land, 530 F.3d 883, 894 (9th Cir. 2008). 1 is March 22, 2024. See id. Petitioner is subject to a final order of removal by Immigration and 2 Customs Enforcement. See id. In the instant federal petition, Petitioner seeks relief under the 3 First Step Act (FSA). See ECF No. 1. 4 5 II. DISCUSSION 6 In the unopposed motion to dismiss, Respondent argues: (1) this case must be 7 dismissed because Petitioner failed to exhaust administrative remedies with the BOP; (2) this case 8 must be dismissed for lack of standing to challenge BOP discretionary actions; and (3) this case 9 must be dismissed because Petitioner is subject to an order of removal. See ECF No. 9. 10 The First Step Act (FSA) was enacted on December 21, 2018, and implemented a 11 number of prison and sentencing reforms, including computation of good time credits, reducing and 12 restricting mandatory minimum sentences, safety valve eligibility, retroactive application of the Fair 13 Sentencing Act, and the availability of early release. First Step Act of 2018, Pub. L. No. 115-391, 132 14 Stat. 5194 (2018). Under the FSA, prisoners “who successfully complete[ ] evidence-based 15 recidivism reduction programming or productive activities” “shall earn 10 days of time credits for 16 every 30 days of successful participation.” 18 U.S.C. § 3632(d)(4)(A). A prisoner determined “to be 17 at a minimum or low risk for recidivating, who, over 2 consecutive assessments, has not increased 18 their risk of recidivism, shall earn an additional 5 days of time credits for every 30 days of 19 successful participation in evidence-based recidivism reduction programming or productive 20 activities.” 18 U.S.C. § 3632(d)(4)(A)(ii). According to the FSA:

21 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 22 the immigration laws (as such term is defined in section 101(a)(17) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(17))). 23 18 U.S.C. § 3632(d)(4)(E)(i) (emphasis added). 24 25 The Court finds Respondent’s third argument dispositive. The statute is quite 26 clear, and Respondent is correct that Petitioner is ineligible for relief under the FSA because he is 27 subject to an order of removal. Petitioner’s petition for a writ of habeas corpus must be 28 dismissed. 1 Il. CONCLUSION 2 Based on the foregoing, the undersigned orders and recommends as follows: 3 1. It is RECOMMENDED that Respondent’s unopposed motion to dismiss, 4 || ECF No. 9, be GRANTED and that this action be dismissed. 5 2. It is ORDERED that Petitioner’s motion, ECF Nos. 13 and 15, be DENIED 6 || without prejudice to renewal should these findings and recommendations not be adopted by the 7 || District Judge. 8 These findings and recommendations are submitted to the United States District 9 || Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within 14 days 10 || after being served with these findings and recommendations, any party may file written objections 11 || with the Court. Responses to objections shall be filed within 14 days after service of objections. 12 | Failure to file objections within the specified time may waive the right to appeal. See Martinez v. 13 Yist, 951 F.2d 1153 (9th Cir. 1991). 14 15 || Dated: January 31, 2024 Ss..c0_, 16 DENNIS M. COTA 17 UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28