1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 MARIA ABERNETHY, 29710-058, Case No. 22-cv-03284-CRB (PR)

8 Petitioner, ORDER DISMISSING PETITION FOR

A WRIT OF HABEAS CORPUS

9 v.

10 ACTING WARDEN, FCI-DUBLIN, 11 Respondent.

12 Petitioner, a federal prisoner serving a sentence from the United States District Court for 13 the Western District of North Carolina, seeks a writ of habeas corpus under 28 U.S.C. § 2241 14 challenging the Bureau of Prisons’ (BOP) computation of her federal sentence. Petitioner 15 specifically seeks an order directing BOP to recalculate her sentence based on federal time credits 16 (FTCs) she is entitled to under the First Step Act (FSA). 17 BACKGROUND 18 On January 12, 2017, petitioner was sentenced to a prison term of 135 months for 19 conspiracy to possess with intent to distribute cocaine. Hubbard Decl. (ECF No. 6-1) ¶ 3 & Ex. 1 20 at 3. She was committed to the custody of BOP on April 17, 2017. Id. Ex. 1 at 3. 21 On June 3, 2022, while incarcerated at the Federal Correctional Institution in Dublin, 22 California (FCI-Dublin), petitioner filed the instant pro se petition for a writ of habeas corpus 23 under § 2241 claiming that BOP’s delay in recalculating her sentence based on FTCs she is 24 entitled to under FSA is delaying her release from prison. ECF No. 1. 25 On September 27, 2022, the court found that, liberally construed, petitioner’s claim 26 appears arguably cognizable under § 2241 and ordered respondent to show cause why a writ of 27 habeas corpus should not be granted. ECF No. 5. Respondent filed an answer asking the court to 1 DISCUSSION 2 Petitioner seeks correction of her federal sentence computation by way of a writ of habeas 3 corpus ordering BOP to recalculate her sentence based on FTCs she is entitled to under FSA.1 4 Respondent asks the court to dismiss the petition on the grounds that petitioner’s claim is moot 5 because BOP recalculated petitioner’s sentence since the petition was filed. Alternatively, 6 respondent argues that the claim is unexhausted and that it is not yet ripe for adjudication. The 7 court finds that petitioner’s claim is moot. 8 A. Mootness 9 Article III of the United States Constitution limits the jurisdiction of federal courts to 10 “actual, ongoing cases or controversies.” Lewis v. Continental Bank Corp., 494 U.S. 472, 477 11 (1990). A claim is considered moot if it has lost its character as a present, live controversy and if 12 no effective relief can be granted due to subsequent developments. Flast v. Cohen, 392 U.S. 83, 13 95 (1968). An analysis of mootness thus requires courts to look to changing circumstances that 14 arise after the complaint is filed. ACLU v. Heller, 471 F.3d 1010, 1016 (9th Cir. 2006). 15 Here, petitioner’s claim is moot because her requested relief—that the court order BOP to 16 recalculate her sentence in accordance with FSA—can no longer be granted by the court. Shortly 17 after petitioner filed the instant petition in June 2022, BOP started recalculating prisoners’ FTCs 18 using a “specially developed application” to implement FSA. Hubbard Decl. ¶ 4. Accordingly, 19 while still incarcerated at FCI-Dublin, petitioner received 195 days of FTCs under FSA, which 20 shortened her projected release date to December 28, 2023. Id. She now is housed at a halfway 21 house in the Raleigh Residential Reentry Management area (Raleigh RRM area), id., and her 22 projected release date was furthered shortened to July 11, 2023, BOP Inmate Locator, 23 https://www.bop.gov/inmateloc (last visited March 1, 2023). 24 Because BOP already has granted petitioner the relief she seeks—recalculation of her 25 sentence in accordance with FSA—“no effective relief can be granted due to subsequent 26 developments.” Flast, 392 U.S. at 95. The petition accordingly is dismissed as moot. 27 1 B. Exhaustion 2 Respondent also argues that the petition should be dismissed because petitioner did not 3 exhaust available administrative remedies before filing suit. Because the petition is moot, the 4 court need not decide this issue. But if petitioner wishes to challenge BOP’s most recent 5 recalculation of her sentence under FSA, she must exhaust available administrative remedies 6 before filing a new petition. 7 While § 2241 does not contain an explicit statutory exhaustion requirement, the Ninth 8 Circuit requires a petitioner to exhaust administrative remedies before filing a § 2241 petition. See 9 Ward v. Chavez, 678 F.3d 1042, 1045 (9th Cir. 2012) (“[a]s a prudential matter, courts require 10 that habeas petitioners exhaust all available judicial and administrative remedies before seeking 11 relief under § 2241”) (citation omitted). 12 BOP has a multi-step administrative remedy program allowing a prisoner “to seek formal 13 review of an issue relating to any aspect of his/her own confinement.” 28 C.F.R. § 542.10(a). 14 First, a prisoner should attempt informal resolution of the issue with the appropriate staff member. 15 Id. § 542.13(b). If informal resolution is unsuccessful, the prisoner may submit a formal written 16 grievance, using the BP-9 form, to the warden within twenty (20) calendar days “following the 17 date on which the basis for the Request occurred.” Id. § 542.14(a). The request is “considered 18 filed on the date it is logged into the Administrative Remedy Index as received.” Id. § 542.18. 19 Once filed, the warden is to respond to the request within twenty (20) calendar days. Id. A 20 prisoner dissatisfied with the warden’s response may appeal, using the BP-10 form, “to the 21 appropriate Regional Director within 20 calendar days of the date the Warden signed the 22 response.” Id. § 542.15(a). Finally, a prisoner may appeal the Regional Director’s response, using 23 the BP- 11 form, to BOP’s General Counsel “within 30 calendar days of the date the Regional 24 Director signed the response.” Id. Petitioner must follow this multi-step process before filing a 25 § 2241 petition challenging BOP’s most recent recalculation of her sentence under FSA. 26 C. Ripeness 27 Respondent finally argues that the petition should be dismissed because petitioner’s FSA ] release. Respondent relies on two cases in which two different district courts found that 2 || recalculation of FTCs pursuant to FSA was not ripe for adjudication: (1) Khouanmany v. Carvajal, 3 || No. 20-cv-02858-LHK, 2021 WL 2186218 (N.D. Cal. May 28, 2021); and (2) Hand v. Barr, No. 4 || 20-cv-00348-SAB-HC, 2021 WL 392445 (E.D. Cal. Feb. 4, 2021), report and recommendation 5 || adopted by, No. 20-cv-00348-A WI-SAB-HC, 2021 WL 1853295 (E.D. Cal. May 10, 2021). A 6 || dispositive fact in both of these cases was that FSA provided until January 15, 2022 for BOP to 7 || “phase-in” the evidence-based recidivism reduction programs and productive activities for all 8 || prisoners, which are part of the calculation for FTCs. See 18 U.S.C. § 3621(h)(2)(A). Because 9 || the petitioners in Khouanmany and Hand filed their respective petitions before January 15, 2022, 10 || the courts found that the claims therein were not yet ripe for adjudication. See Khouanmany, 2021 11 WL 2186218, at *7; Hand, 2021 WL 392445, at *5. 12 In the instant case, petitioner filed her petition after January 15, 2022. It therefore does not 13 || necessarily follow that her claim is not yet ripe for adjudication. But because the court already has 14 || found that the petition is moot, it need not decide whether the FSA claim herein is ripe for review. 3 15 || See Butler v. Bradley, No. CV 20-11211 DMG (RAO), 2021 WL 945252, at *3 n.4 (C.D. Cal. 16 || Feb. 22, 2021) (declining to decide whether FSA claims are ripe), report and recommendation i 17 || adopted by, No. CV 20-11211 DMG (RAO), 2021 WL 5596151 (C.D. Cal. Nov. 30, 2021). 18 CONCLUSION 19 For the foregoing reasons, the petition for a writ of habeas corpus under § 2241 is 20 DISMISSED as moot. 21 IT ISSO ORDERED. 22 || Dated: March 2, 2023 23 x A YY

CHARLES R. BREYER

24 United States District Judge 25 26 27 28