Opinion
CV 23-01587-PHX-JAT (ASB)
02-02-2024
Derek Bluford, Petitioner, v. Warden Birkholz, Respondent.
TO THE HONORABLE JAMES A. TEILBORG, SENIOR UNITED STATES DISTRICT JUDGE
REPORT AND RECOMMENDATION
Honorable Alison S. Bachus, United States Magistriate Judge
Pending before the Court is Petitioner Derek Bluford's pro se Petition for a Writ of Habeas Corpus Under 28 U.S.C. § 2241 (Doc. 1). Petitioner is in the custody of the Federal Bureau of Prisons (“BOP”). In an Order filed on September 13, 2023, the Court reviewed the Petition and directed Respondent to file an Answer. (Doc. 3.) Respondent timely filed an Answer to the Petition for Writ of Habeas Corpus, and the Answer included a Motion to Dismiss. (Doc. 8.) No reply was filed by Petitioner. For the reasons that follow, the undersigned recommends the Petition for Writ of Habeas Corpus be dismissed.
I. BACKGROUND
Petitioner is serving a sentence of 84 months' imprisonment for a conviction in the United States District Court for the Eastern District of California for Wire Fraud, in violation of 18 U.S.C. § 1343; Engaging in Monetary Transaction Involving Criminally Derived Proceeds, in violation of 18 U.S.C. § 1957; False Statement in violation of 18 U.S.C. § 1001; and Destruction, Alteration, or Falsification of Records in a Federal Investigation, in violation of 18 U.S.C. § 1519. (Doc. 8-1, Att. 1.)
Petitioner filed the habeas petition in this action on August 7, 2023. (Doc. 1.) At the time he filed his Petition, Petitioner was incarcerated at Federal Correctional Institution-Phoenix (“FCI-Phoenix”), located in Phoenix, Arizona, in the District of Arizona. Per the Answer, Jacob Doerer is the interim warden of FCI-Phoenix and thus should be substituted as Respondent. (Doc. 8 at 1.) The Court notes the attachments to the Answer show Petitioner was incarcerated at FCI-Phoenix in September 2023. (See, e.g., Doc. 8-1 at 10 (BOP inmate profile screenshot showing facility as “Phoenix FCI”)). Petitioner remains in the custody of the Federal Bureau of Prisons. However, the Federal Bureau of Prisons' website shows Petitioner is now housed at the United States Penitentiary Lompoc in Lompoc, California, in the Central District of California. See Federal BOP, Find an inmate, https://www.bop.gov/mobile/findinmate/index.jsp#inmateresults (last visited February 2, 2024). The docket does not show any mail to Petitioner has been returned as undeliverable.
The Court takes judicial notice of the BOP Inmate Locator, which is publicly available on the BOP's website. See United States v. Basher, 629 F.3d 1161, 1165 n.2 (9th Cir. 2011) (taking judicial notice of same).
In his Petition, Petitioner argues that Respondent improperly failed to award him 13 months of First Step Act earned time credits for vocational training he was directed by BOP to complete. (Doc. 1 at 2.) He argues BOP policy (known as a Program Statement) allows credit for the training, and BOP is violating its own policy by failing to award him First Step Act credits. (Id.) He further asserts he followed the administrative remedy procedure for the Federal Bureau of Prisons, but his request for relief was denied. (Id. at 2, 8.) In opposition, Respondent contends this Court lacks subject matter jurisdiction pursuant to 18 U.S.C. § 3625 and lacks authority to compel discretionary action by BOP. Respondent also avers Petitioner failed to exhaust his administrative remedies and the Petition fails on the merits.
In his Petition, Petitioner indicated that an attachment “called ‘Grounds for Challenge'” should be reviewed. (Doc. 1 at 7.) However, a review of the attachments to the Petition reveals no such attachment. The Court has fully considered all attachments to all filings in this matter.
II. DISCUSSION
Writ of habeas corpus relief extends a person in federal custody if the federal prisoner can demonstrate he “is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241(c)(3). A federal prisoner may seek a writ of habeas corpus to challenge the manner of the execution of his sentence pursuant to 28 U.S.C. § 2241. Hernandez v. Campbell, 204 F.3d 861, 864 (9th Cir. 2000); Tucker v. Carlson, 925 F.3d 330, 331 (9th Cir. 1990) (challenges to the execution of a sentence are “maintainable only in a petition for habeas corpus filed pursuant to 28 U.S.C. § 2241”); see also United States v. Giddings, 740 F.2d 770, 772 (9th Cir. 1984) (holding that a petitioner may challenge the execution of a sentence by bringing a petition under 28 U.S.C. § 2241). Petitioner challenges the execution of his sentence.
When he filed his Petition, Petitioner was confined in this District; thus, this Court may consider the Petition, even though Petitioner has since been transferred by BOP outside the District of Arizona. See Brown v. United States, 610 F.2d 672, 677 (9th Cir. 1990) (§ 2241 petition must be brought in the district of confinement); see also Johnson v. Gill, 883 F.3d 756, 761 (9th Cir. 2018) and Francis v. Rison, 894 F.2d 353, 354 (9th Cir. 1990) (“‘[J]urisdiction attaches on the initial filing for habeas corpus relief, and it is not destroyed by a transfer of the petitioner and the accompanying custodial change.'” (quoting Santillanes v. U.S. Parole Comm'n, 754 F.2d 887, 888 (10th Cir. 1985)); see also Ogborn v. Fed. Bureau of Prisons, No. CR-04-84-GF-BMM, 2023WL 3435303, at *3 (D. Mont. May 12, 2023) (noting a split within the Ninth Circuit on whether personal jurisdiction vests after BOP transfers a habeas prisoner, finding maintaining jurisdiction after an out-of-district transfer “makes sense in practice,” and affirming its previous determination that transfer had not divested the court of its personal jurisdiction).
A. Subject Matter Jurisdiction
“Federal courts are always ‘under an independent obligation to examine their own jurisdiction,' ... and a federal court may not entertain an action over which it has no jurisdiction.” Hernandez v. Campbell, 204 F.3d 861, 865 (9th Cir. 2000) (quoting FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 231 (1990)). To determine the issue of subject matter jurisdiction, the Court considers the relevant statutory scheme and controlling case law.
Petitioner argues that BOP has failed to apply First Step Act credits towards his earned time credit calculation. The First Step Act (“FSA”), enacted in 2018, included an amendment to 18 U.S.C. § 3624 concerning the FSA's creation of an earned time credit system. Bottinelli v. Salazar, 929 F.3d 1196, 1197 (9th Cir. 2019). The FSA added subsection (g) to 18 U.S.C. § 3624 for that purpose; § 3624(g) “details the criteria for when a prisoner becomes eligible, considering earned time credit, for transfer to prerelease custody or supervised release.” Id. at 1198.
Persons who “suffer[] legal wrong because of agency action” may generally seek judicial review of the agency action, unless another statute provides otherwise. Reeb v. Thomas, 636 F.3d 1224, 1226 (9th Cir. 2011) (quoting 5 U.S.C. § 702). In Reeb, the Ninth Circuit considered the effect of 18 U.S.C. § 3625 on a prisoner's ability to challenge a discretionary determination made by BOP under 18 U.S.C. § 3621 through a petition for habeas corpus under 28 U.S.C. § 2241. The Circuit observed that 18 U.S.C. § 3625 specifically states judicial review under the Administrative Procedures Act (5 U.S.C. §§ 701-706) does not apply to “‘any determination, decision, or order' made pursuant to 18 U.S.C. §§ 3621-3624.” Id. at 1227. The Reeb court continued, “A habeas claim cannot be sustained based solely upon the BOP's purported violation of its own program statement because noncompliance with a BOP program statement is not a violation of federal law.” Id. (citing Jacks v. Crabtree, 114 F.3d 983, 985 n. 1 (9th Cir. 1997) and Reno v. Koray, 515 U.S. 50, 61 (1995)). Reeb held that when a prisoner's “habeas petition alleges only that the BOP erred in his particular case,” the district court lacks jurisdiction to adjudicate the merits of that petition. Id. at 1228-29. However, when a habeas petition alleges “that BOP action is contrary to established federal law, violates the United States Constitution, or exceeds its statutory authority,” judicial review “remains available.” Id. at 1228.
Thus, under Reeb, this Court considers Petitioner's specific challenge in his instant Petition. 636 F.3d at 1228-29. Petitioner alleges in his Petition as follows: “BOP is not giving me credit for the ‘vocational training' program that I completed, despite it clearly being allowed via their policy.” (Doc. 1 at 2.) Petitioner does not argue that BOP has violated federal law or the federal Constitution. He does not contend BOP has exceeded its statutory authority. Instead, he attacks BOP's application of its own program statement and discretionary, individualized determination under 18 U.S.C. § 3624. The Ninth Circuit has held that the courts lack subject matter jurisdiction over such habeas petitions. Reeb, 636 F.3d at 1228-29. Accordingly, the Court will recommend to the District Judge that the Petition be dismissed for lack of subject matter jurisdiction.
B. Exhaustion
The Reeb court further observed that “[t]he BOP's Administrative Remedy Program, set forth at 28 C.F.R. §§ 542.10-19, provides a vehicle for aggrieved inmates to challenge such discretionary BOP determinations.” 636 F.3d at 1227. Indeed, a federal prisoner must exhaust his administrative remedies through the Bureau of Prisons before filing a § 2241 petition. Fraley v. U.S. Bureau of Prisons, 1 F.3d 924, 925 (9th Cir. 1993). “When a petitioner does not exhaust administrative remedies, a district court ordinarily should either dismiss the petition without prejudice or stay the proceedings until the petitioner has exhausted remedies, unless exhaustion is excused.” Leonardo v. Crawford, 646 F.3d 1157, 1160 (9th Cir. 2011) (internal citations omitted). A prisoner exhausts his administrative remedies by pursuing his claim in the Bureau of Prisons' four-tier process set forth at 28 C.F.R. §§ 542.10 et seq: first, the inmate must pursue the issue informally with institution staff (known as a BP-8); if unsuccessful at the first stage, the inmate must formally raise the issue with the warden (known as a BP-9); if unsuccessful with the second step, the inmate must bring the issue to the attention of the Regional Director (known as a BP-10); and finally, if unsuccessful at the regional level, the inmate must appeal to the Bureau of Prisons' General Counsel in Washington, D.C. (known as a BP-11).
Here, Petitioner indicates in his Petition that he pursued the administrative remedy processes at the institution level. (Doc. 1 at 2.) Respondent's Answer indicates Petitioner further appealed administratively to the regional level, but not to the national level. (Doc. 8, Ex. B at ¶¶ 12-14.) Based on the record before it, the Court concludes Petitioner failed to exhaust his administrative remedies. No grounds for excusal of exhaustion has been raised to the Court, and the Court does not find one applies. Dismissal based on failure to exhaust administrative remedies will therefore be alternatively recommended.
C. Conclusion
For the reasons set forth above, the Court will recommend that the Petition for Writ of Habeas Corpus (Doc. 1) be denied and dismissed.
A review of the docket shows Petitioner has not updated his address with the Court, contrary to the Court's Order filed September 13, 2023. (Doc. 3 at 1-2) (warning Petitioner to file and serve a notice with any change in address under Rule 83.3(d) of the Local Rules of Civil Procedure). Nonetheless, to ensure Petitioner receives a copy of this Report and Recommendation, the Court will direct the Clerk of Court to mail a copy of this Report and Recommendation to Petitioner at his address according to the Bureau of Prisons.
RECOMMENDATION
IT IS RECOMMENDED that the Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 (Doc. 1) be DENIED and DISMISSED WITH PREJUDICE.
EFFECT OF RECOMMENDATION
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment. The parties shall have 14 days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(b) and 72. Thereafter, the parties have 14 days within which to file a response to the objections.
Failure to timely file objections to the Magistrate Judge's Report and Recommendation may result in the acceptance of the Report and Recommendation by the district court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure to timely file objections to any factual determinations of the Magistrate Judge will be considered a waiver of a party's right to appellate review of the findings of fact in an order of judgment entered pursuant to the Magistrate Judge's recommendation. See Fed.R.Civ.P. 72.
ORDER
IT IS ORDERED directing the Clerk of Court to mail a copy of this Report and Recommendation to Petitioner at: Derek Bluford, Reg. No. 77108-097, USP Lompoc, U.S. Penitentiary, 3901 Klein Blvd., Lompoc, CA 93436.