Opinion
CV-23-01362-PHX-DJH (DMF)
12-27-2023
Daniel Davenport, Petitioner, v. Unknown Birkholz, Respondent.
REPORT AND RECOMMENDATION
HONORABLE DEBORAH M. FINE, UNITED STATES MAGISTRATE JUDGE
TO THE HONORABLE DIANE J. HUMETEWA, UNITED STATES DISTRICT JUDGE:
This matter is on referral to the undersigned for further proceedings and a report and recommendation pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure. (Doc. 4 at 3)
Citation to the record indicates documents as displayed in the official Court electronic document filing system maintained by the District of Arizona under Case No. CV-23-01362-PHX-DJH (DMF).
On July 10, 2023, Petitioner Daniel Davenport (“Petitioner”), who is confined in the Federal Correctional Institution-Phoenix, filed a pro se Petition Under 28 U.S.C. § 2241 for a Writ of Habeas Corpus by a Person in Federal Custody (“Petition”). (Doc. 1) In his Petition, Petitioner names Warden Birkholz as Respondent and asserts that prison officials have not applied his First Step Act time credits to his sentence. (Id. at 1) Petitioner paid the filing fee in full. (Doc. 3)
The Petition was docketed by the Clerk of Court on July 13, 2023. (Doc. 1) The Petition contains a declaration by Petitioner that he placed the Petition in the prison mailing system on July 10, 2023. (Id. at 9) This Report and Recommendation uses July 10, 2023, as the operative filing date. Porter v. Ollison, 620 F.3d 952, 958 (9th Cir. 2010) (“A petition is considered to be filed on the date a prisoner hands the petition to prison officials for mailing.”); Melville v. Shinn, 68 F.4th 1154, 1159 (9th Cir. 2023).
On August 8, 2023, the Court ordered Respondent to answer the Petition. (Doc. 4 at 1-2) The Court ordered that “Respondent shall not file a dispositive motion in place of an answer without first showing cause as to why an answer is inadequate.” (Id. at 2)
On August 30, 2023, Respondent filed a “Return and Answer to Petition for a Writ of Habeas Corpus Under 28 U.S.C. § 2241 and Motion to Dismiss Petition.” (Doc. 9) In the filing, Respondent's counsel requests that Bryan Hudson, Interim Warden, Federal Correctional Institution in Phoenix, Arizona (FCI Phoenix), be substituted as Respondent in this case. (Doc. 9 at 1, footnote 1) Respondent also argues that the Petition should be dismissed and that Petitioner's claim fails on the merits. (Docs. 9, 9-1, 9-2)
Respondent's filing (Doc. 9) was not docketed as a motion. Petitioner's reply addresses the arguments for dismissal in Respondent's filing. (Docs. 9, 13) Permission was not sought or granted for separate motion to dismiss briefing. Review of this record reveals that it is sufficiently developed, and there is no need for briefing in addition to the briefing previously ordered by the Court.
Also, “Warden Hudson” is Respondent in the caption of Respondent's filing rather than the currently named Respondent. (Doc. 9)
In October 2023, Petitioner filed a timely reply addressing the dismissal arguments by Respondent and arguing in support of the Petition's claim. (Docs. 13, 13-1)
Upon careful review, it is recommended that the request by Respondent's counsel that Bryan Hudson, Interim Warden, Federal Correctional Institution in Phoenix, Arizona (FCI Phoenix), be substituted as Respondent in this case be granted. As discussed in section II, infra, Petitioner did not exhaust his administrative remedies, which warrants dismissal of the Petition. Further, because this sufficiently developed record does not support habeas relief as discussed in section III, infra, it is recommended that the Petition be denied and this matter terminated.
I. THESE HABEAS PROCEEDINGS
Petitioner is currently serving a 120-month term of imprisonment for drug distribution offenses in violation of the federal criminal code. (Doc. 9-1 at 3, ¶ 4; Doc. 91 at 6-11)
In his July 2023 Petition and October 2023 reply, Petitioner claims that the “BOP” (short for Bureau of Prisons) is refusing to credit and/or apply Petitioner's earned time credits under the First Step Act of 2018 (“FSA”). (Doc. 1 at 1, 3-4; Doc. 13 at 2-5, 8-13) The Petition states that the challenged action is the BOP's failure to give Petitioner his “time off for the [F]irst [S]tep [A]ct.” (Doc. 1 at 1) Although not cited by Petitioner, statutory provisions regarding FSA earned time credits are generally found in 18 U.S.C. §§ 3632(d)(4) & 3624(g). Petitioner's habeas claim states that “Congress mandated that all inmates get the time off for the First Step Act” and the BOP has not given Petitioner “anything.” (Doc. 1 at 4) For relief, Petitioner requests that this Court order the BOP to apply all FSA earned time credits (“FTCs”) to Petitioner's sentence computation: “I would like the Court to order the BOP to give me my time off.” (Id. at 9) Petitioner asserts that he did exhaust his administrative remedies in that he gave his unit team “a BP8 and has not got it back.” (Id. at 4) Petitioner asserts that he “cannot turn in a BP nine without an eight” and that he “cannot do anything else but a 2241.” (Id. at 3, 4)
Respondent filed a “Return and Answer to Petition for a Writ of Habeas Corpus Under 28 U.S.C. § 2241 and Motion to Dismiss Petition.” (Doc. 9) Because the warden of the institution having physical custody of the petitioner is the only proper respondent in a habeas proceeding pursuant to 28 U.S.C. § 2241, see Rumsfeld v. Padilla, 542 U.S. 426, 434 (2004), Respondent's counsel requests that Bryan Hudson, Interim Warden, Federal Correctional Institution in Phoenix, Arizona (FCI Phoenix), be substituted as Respondent in this case. (Doc. 9 at 1, footnote 1) Respondent further requests that the Petition be dismissed for lack of jurisdiction, arguing that jurisdiction is lacking because Petitioner filed to exhaust his administrative remedies, that the Court lacks jurisdiction to review FSA FTC decisions, and that the Court lacks jurisdiction to compel BOP to take discretionary action. (Id. at 4-9) Respondent also argues that Petitioner does not have a liberty interest in the application of FTCs under the FSA, and that Petitioner's sentence is properly calculated. (Id. at 9-12) In support of opposition to the Petition, Respondent submits two declarations with exhibits. (Docs. 9-1, 9-2) The declarations and exhibits regard Petitioner's sentence expiration calculations, Petitioner's FSA FTCs status, the BOP's implementation procedures for FSA FTCs, the BOP's administrative review process, inmate access to administrative review forms, and the lack of any tracked administrative review request by Petitioner. (Id.)
Petitioner filed a reply in support of the Petition, which argues in favor of relief requested in the Petition and addresses the arguments for dismissal raised in Respondent's filing. (Doc. 13) In his reply, Petitioner argues that administrative exhaustion would be futile, and Petitioner attaches emails between Petitioner and the Warden on July 6 and July 7, 2023, in which Petitioner asks for his FSA “year off please” and the Warden responds that Petitioner “need[s] to speak to [Petitioner's] case manager and unit manager.” (Doc. 13 at 5-9; Doc. 13-1 at 2, 13-15) Petitioner's reply arguments include that BOP has misinterpreted the FSA and “that he is entitled to have the FSA's new [FTCs] calculation provision now and that he is entitled to an immediate recalculation of his sentence.” (Doc. 13 at 2-11) As discussed in section III, infra, the reply's arguments mistakenly cite the Good Time Credits (“GTCs”) statutory provisions, which predated the FSA. (Id. at 10) Further, the reply conflates FSA FTCs with GTCs despite that those are different types of credits. (Id. at 2, 10)
Spelling corrected in this quote.
II. EXHAUSTION BEFORE 28 U.S.C. § 2241 PETITION
Federal inmates have two avenues for pursuing habeas corpus relief. A challenge to a federal prisoner's conviction or sentence can be raised via a motion to vacate, set aside, or correct the sentence pursuant to 28 U.S.C. § 2255. Section 2255 motions are filed in the judicial district where the conviction occurred. A habeas petition challenging the “manner, location or condition of a sentence's execution” must be brought pursuant to 28 U.S.C. § 2241. Hernandez v. Campbell, 204 F.3d 861, 864 (9th Cir. 2000). Here, the Petition is brought under Section 2241 and is alleged to regard the “manner, location, or condition” of the execution of Petitioner's sentence.
As a general matter, an inmate must exhaust his administrative remedies before filing a lawsuit. Ward v. Chavez, 678 F.3d 1042, 1045 (9th Cir. 2012). It is true that administrative exhaustion is not statutorily required by 28 U.S.C. § 2241. See Laing v. Ashcroft, 370 F.3d 994, 997 (9th Cir. 2004) (citing McKart v. United States, 395 U.S. 185, 194 (1969)). However, courts generally require that administrative remedies be exhausted before Section 2241 habeas proceedings because it is usually more efficient for the administrative process to go forward without interruption than to permit parties to seek aid from the courts at various intermediate stages. Id.; see also McKart, 395 U.S. at 194. As explained by the Ninth Circuit in Laing:
Under the doctrine of exhaustion, “no one is entitled to judicial relief for a supposed or threatened injury until the prescribed ... remedy has been exhausted.” McKart v. United States, 395 U.S. 185, 193, 89 S.Ct. 1657, 23 L.Ed.2d 194 (1969) (citation and internal quotation marks omitted). Exhaustion can be either statutorily or judicially required. If exhaustion is required by statute, it may be mandatory and jurisdictional, but courts have discretion to waive a prudential requirement. El Rescate Legal Servs., Inc. v. Executive Office of Immigration Review, 959 F.2d 742, 746 (9th Cir.1991); Stratman v. Watt, 656 F.2d 1321, 1325-26 (9th Cir.1981).370 F.3d at 997-98.
“Courts may require prudential exhaustion if ‘(1) agency expertise makes agency consideration necessary to generate a proper record and reach a proper decision; (2) relaxation of the requirement would encourage the deliberate bypass of the administrative scheme; and (3) administrative review is likely to allow the agency to correct its own mistakes and to preclude the need for judicial review.'” Noriega-Lopez v. Ashcroft, 335 F.3d 874, 881 (9th Cir. 2003) (citations omitted). Even when exhaustion is prudential and courts have discretion to waive the exhaustion requirement, a key consideration in exercising this discretion is whether waiving the exhaustion requirement encourages the inmate to bypass the administrative scheme. Laing, 370 F.3d at 1000.
When a petitioner does not exhaust administrative remedies and administrative remedies remain available, “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) (citations omitted). Exhaustion may be excused if pursuing an administrative remedy would be futile. Fraley v. United States Bureau of Prisons, 1 F.3d 924, 925 (9th Cir. 1993).
If a prisoner is unable to obtain an administrative remedy because of his failure to administratively appeal in a timely manner, then the petitioner has procedurally defaulted his habeas corpus claim. See Nigro v. Sullivan, 40 F.3d 990, 997 (9th Cir. 1994) (citing Francis v. Rison, 894 F.2d 353, 354 (9th Cir. 1990); Martinez v. Roberts, 804 F.2d 570, 571 (9th Cir. 1986)). If a claim is procedurally defaulted, the court may require the petitioner to demonstrate cause for the procedural default and actual prejudice from the alleged violation of law. See Francis, 894 F.2d at 355 (suggesting that the cause and prejudice test is the appropriate test); Murray v. Carrier, 477 U.S. 478, 492 (1986) (cause and prejudice test applied to procedural defaults on appeal); Hughes v. Idaho State Bd. of Corrections, 800 F.2d 905, 906-08 (9th Cir. 1986) (cause and prejudice test applied to pro se litigants).
As Petitioner recognizes in his Petition insofar as his references to a “BP” eight and/or nine (Doc. 1 at 3-4), the BOP has a process for inmates who want to challenge an aspect of their confinement, including implementation of the FSA FTCs. See 28 C.F.R. § 542.10 et seq.; 28 C.F.R. § 542.14; Doc. 9-1 at 29, 30; Doc. 9-2 at 3. Here, the record is clear that Petitioner has not exhausted his administrative remedies with respect to FTCs under the FSA. (Doc. 9-1 at 29-30; Doc. 9-2 at 2-8). Further, the Court agrees with Respondent that:
[t]o the extent that Petitioner alleges he was prevented from exhausting his administrative remedies because he was denied forms or otherwise thwarted by Bureau staff, he does not identify any dates - or date ranges - when he was purportedly denied administrative remedy forms. Likewise, Petitioner fails to provide any facts to indicate who denied him the necessary forms.(Doc. 9 at 6) In contrast, Respondent has provided a declaration explaining the administrative review process and adequate access to such by inmates at BOP facilities such as the one where Petitioner has been housed. (Doc. 9-2 at 2-8) Moreover, Petitioner's reply arguments that utilizing the administrative process would be futile are insufficiently supported and are unpersuasive.
There is no specific or credible evidence that Petitioner lacked available administrative remedies, and nothing in the record suggests that the exhaustion requirement should be waived. Allowing Petitioner to raise this issue first with the Court would greatly encourage Petitioner and other inmates to deliberately bypass the BOP administrative remedy scheme.
In sum, the BOP should have been given an initial opportunity to address Petitioner's claim regarding earning and application of FTCs under the FSA and implementing regulations. Petitioner has not shown cause or other sufficient excuse for his failure to previously exhaust his administrative remedies. Thus, the Petition is subject to dismissal for failure to exhaust administrative remedies before filing the Petition. The Court will nevertheless address the Petition on the merits. In doing so as set forth below, the Court concludes that the Petition should be denied on the merits and this matter terminated.
III. PETITIONER'S CLAIM FAILS ON THE MERITS BECAUSE PETITIONER IS NOT PRESENTLY ENTITLED TO APPLY HIS FIRST STEP ACT EARNED TIME CREDITS (“FSA FTCs”)
A habeas petition challenging the “manner, location or condition of a sentence's execution” must be brought pursuant to 28 U.S.C. § 2241. Hernandez, 204 F.3d at 864. Here, the Petition is brought under Section 2241 and is alleged to regard the “manner, location, or condition” of the execution of Petitioner's sentence.
Although a district court has no jurisdiction over the BOP's discretionary designation decisions, it does have jurisdiction in Section 2241 proceedings to decide whether the Bureau of Prisons acted contrary to established federal law, violated the Constitution, or exceeded its statutory authority. Compare Reeb v. Thomas, 636 F.3d 1224, 1228 (9th Cir. 2011), with Close v. Thomas, 653 F.3d 970, 973-74 (9th Cir. 2011).
Contrary to Respondent's arguments (Doc. 9 at 7-9), neither the inapplicability of the Administrative Procedures Act, see 18 U.S.C. § 3625, nor the Court's lack of jurisdiction to review BOP discretionary designation decisions undermines the Court's Section 2241 jurisdiction to evaluate whether the Bureau of Prisons acted contrary to established federal law, violated the Constitution, or exceeded its statutory authority in the manner, location, or condition of Petitioner's sentence in light of the First Step Act earned time credits (FSA FTCs) provisions and the particular issue raised by Petitioner.
The Petition is directed at Petitioner's eligibility to earn and to apply FTCs under the FSA. (Doc. 1) Respondent argues that the Petition should be dismissed because Petitioner's sentence has been properly calculated; Respondent argues that Petitioner is statutorily precluded from applying his FTCs under the FSA towards prerelease custody given his current risk level for recidivism. (Doc. 9 at 11-12) In reply, Petitioner argues that he is entitled to habeas relief to enforce application of FSA FTCs. (Doc. 13) In doing so, Petitioner mistakenly cites the Good Time Credits (“GTCs”) statutory provisions which predated the FSA, and Petitioner conflates FSA FTCs with GTCs despite that those are different types of credits. (Id. at 2, 10)
The BOP materials submitted by Respondent reflect that Petitioner's projected release date from the BOP custody is May 10, 2026. (Doc. 9-1 at 6-11) The May 10, 2026, projected release date includes Good Time Credits or “GTCs” pursuant to 18 U.S.C. §§ 3624(a) & (b)(1), which predated passage of the First Step Act. (Id.) Without GTCs, Petitioner's full term imprisonment sentence expires on November 1, 2027. (Doc. 9-1 at 8) This habeas proceeding does not relate to GTCs despite that Petitioner uses the abbreviation “GCT” in his reply and mistakenly cites statutory language relating to GTCs (and not relating to FSA FTCs) in support of his FSA FTCs arguments. (Doc. 13 at 2 (using the abbreviation “GCT”); Doc. 13 at 10 (quoting 18 U.S.C. § 3624(a))
GTCs pursuant to 18 U.S.C. § 3624(b) predate the FSA and do not regard prerelease custody, but regard credit towards the length of the imprisonment sentence. Compare 18 U.S.C. § 3624(b) with 18 U.S.C. § 3624(c) (prior versions and versions after FSA amendments). In contrast, FTCs under the FSA are credits towards placement into prerelease custody, such as home confinement or at a residential reentry center placement. See 18 U.S.C. §§ 3632(d)(4) & 3624(g)(2); see also 18 U.S.C. § 3624(g)(3) (allowing BOP to begin supervised release early in some circumstances rather than or in addition to prerelease custody).
By way of context, the FSA was enacted on December 21, 2018 (P.L. 115-391), and addresses the reentry of incarcerated individuals into society. As part of the FSA, Congress directed the Attorney General to develop a risk and needs assessment system, to appropriately direct programming and programming incentives by “determining] the recidivism risk of each prisoner” and classifying “each prisoner as having minimum, low, medium, or high risk for recidivism.” 18 U.S.C. § 3632(a); see also 18 U.S.C. § 3631. The FSA also included creation of an evidence-based recidivism reduction program that incentivizes prisoners to participate in and complete programs and productive activities by allowing certain prisons to earn “10 days of time credits ...” and allowing prisoners classified as a minimum or low risk of recidivism to earn “an additional 5 days of time credits for every 30 days of successful participation.” 18 U.S.C. § 3632(d)(4). There are other separate incentives in addition to time credits, such as phone and visitation privileges. 18 U.S.C. § 3632(d)(1), (2), & (3).
FSA's provisions in P.L. 115-391 include new statutory sections as well as amendments/additions to existing statutes. For example and as pertinent here, 18 U.S.C. § 3632 was enacted from P.L. 115-391, and subsection (g) of 18 U.S.C. § 3624 was added from P.L. 115-391.
These time credits are referred to as “FTCs” in this report and recommendation.
Pursuant to the FSA, time credits earned under 18 U.S.C. § 3632(d)(4) “shall be applied toward time in prerelease custody or supervised release” and “[t]he Director of the Bureau of Prisons shall transfer eligible prisoners, as determined under section 3624(g), into prerelease custody or supervised release.” 18 U.S.C. § 3632(d)(4)(C). Under 18 U.S.C. § 3624(g) of the FSA, an “eligible prisoner” for the application of FTCs to prerelease custody or supervised release must meet four criteria:
See footnote 9, supra.
In 2022, the BOP implemented its final agency rules regarding the earning and awarding of FTCs under the FSA. See 28 C.F.R. §§ 523.40-523.44; Doc. 9-1 at 13-31.
(A) the prisoner must have already earned FTCs;
(B) the prisoner must have demonstrated “recidivism risk reduction or has maintained a minimum or low recidivism risk during their term of
imprisonment”;
(C) the prisoner “has had the remainder of their imposed term of imprisonment computed under applicable law”; and
(D) the prisoner has either (I) “been determined under the System to be a minimum or low risk to recidivate pursuant to the last two reassessments of the prisoner,” or (II) has had a petition to be transferred to prerelease custody or supervised release approved by the warden after the warden has determined the prisoner meets certain criteria.See 18 U.S.C. § 3624(g)(1)(A)-(D).
Specifically, the Warden must have determined that:
(aa) the prisoner would not be a danger to society if transferred to prerelease custody or supervised release;
(bb) the prisoner has made a good faith effort to lower their recidivism risk through participation in recidivism reduction programs or productive activities; and
(cc) the prisoner is unlikely to recidivate[.]18 U.S.C. § 3624(g)(1)(D)(II).
The quoted portion of 18 U.S.C. § 3624 in Petitioner's reply does not relate to FSA FTCs in 18 U.S.C. § 3632(d)(4). (Doc. 13 at 10) The quoted portion of 18 U.S.C. § 3624 in Petitioner's reply does not relate to prerelease custody provisions of the FSA in subsection (g) of 18 U.S.C. § 3624. The quoted portion of 18 U.S.C. § 3624 in Petitioner's reply is from subsection (a) of 18 U.S.C. § 3624 and relates only to GTCs delineated in subsection (b) of 18 U.S.C. § 3624, which the Petition does not challenge. (See Doc. 13-1 at 4; footnote 7, supra)
The availability of prerelease custody predated the FSA. See 18 U.S.C. § 3624(c). Essentially, the FSA created earlier pathways to prerelease custody for certain inmates based on recidivism risk assessment, participation in programming, and other factors.
In sum, the process for how FTCs under the FSA are applied towards accelerating prerelease custody or supervised release for eligible prisoners is set forth in 18 U.S.C. § 3624(g). For placement in prerelease custody, Section 3624(g) requires that the prisoner “has been determined under the System to be a minimum or low risk to recidivate pursuant to the last 2 reassessments of the prisoner” or has specific approval by the warden. 18 U.S.C. § 3624(g)(1)(D)(i). For early transfer to supervised release, Section 3624(g) requires that the inmate “has been determined under the System to be a minimum or low risk to recidivate pursuant to the last reassessment of the prisoner.” 18 U.S.C. § 3624(g)(1)(D)(ii). The clear language of 18 U.S.C. § 3624(g) precludes application of FTCs until an inmate's recidivism risk level is a low or minimum classification.
Here, it is undisputed that Petitioner is presently classified as a medium risk for recidivism and that Petitioner may earn FSA FTC's; further, there is no evidence that the Warden has provided specific approval for Petitioner to be moved to prerelease custody. (See Docs. 1, 9-1, 9-2, 13, 13-1) More specifically, on September 10, 2021, Petitioner was determined to be eligible to earn FTCs under the FSA. (Doc. 9-1 at 3 ¶ 5) On July 27, 2023, Petitioner's risk level was assessed as medium risk for recidivism, and his risk level will be re-assessed in January 2024. (Id. at 3 ¶¶ 5, 7; See 18 U.S.C.A. § 3632(d)(5)) Under the plain statutory language of the FSA, Petitioner is not presently eligible for application of his earned FTCs under the FSA despite that he has earned FTCs under the FSA. See 18 U.S.C. § 3624(g). To the extent that the Petition may be construed to claim that Petitioner's recidivism risk level should have been or should be lower than medium, this Court lacks jurisdiction to review BOP's recidivism risk level determination. See Reeb, 636 F.3d at 1228. In any event, Petitioner's recidivism risk level will be re-assessed by the BOP in January 2024, and Petitioner may avail himself of administrative remedies regarding his recidivism risk level. (Doc. 9-1 at 3 ¶ 7, 14-16, 29, 30)
The record is sufficiently developed, and the Court finds an evidentiary hearing is unnecessary for resolving the Petition's claim.
When in medium classification, as Petitioner has been since at least July 27, 2023, FTCs under the FSA may be earned in the amount of 10 days for every 30 days of successful participation. 18 U.S.C. § 3632(d)(4).
Respondent also argues that Petitioner does not have a liberty interest in the application of his FTCs under the FSA to gain early release. (Doc. 9 at 9-10) Respondent asserts:
Whether Petitioner has a constitutional right to earn time credits is not at issue in the underlying petition. Rather, the issue is whether he can apply his credits to advance his release date from custody. However, because 18 U.S.C. § 3624(g) affords the Bureau discretion to either place him into a prerelease placement (either on home confinement or at a residential reentry center) or onto supervised release, he does not have a constitutional right to “apply” his time credits in a specific manner.(Id. at 9) While it appears correct that 18 U.S.C. § 3624(g) does not create a liberty interest regarding type or conditions of prerelease custody or between prerelease custody and early supervised release, this issue is not ripe because Petitioner is not an eligible prisoner for application of FTCs under the FSA pursuant to 18 U.S.C. § 3624(g)(1). See Gutierrez-Chavez v. I.N.S., 298 F.3d 824, 827 (9th Cir. 2002) (noting that reliefunder § 2241 is not available to challenge purely discretionary decisions), amended, 337 F.3d 1023 (9th Cir.
In short, because Petitioner was determined to be at medium risk for recidivism at his most recent review on July 27, 2023, and there is no evidence that the Warden has provided specific approval for Petitioner to be moved to prerelease custody, Petitioner is not presently eligible under the applicable FSA statutory provisions to have his FTCs applied toward prerelease custody or to early start a supervised release term. (See Doc. 91 at 3 ¶¶ 5, 6).
In sum, Petitioner's claim and arguments fail to account for the difference under the FSA of earning FTCs versus applying FTCs. (Docs. 1, 13) Further, Petitioner conflates GTCs with FSA FTCs. (Id.) GTCs and FSA FTCs are different. See footnote 7, supra. GTCs are earned time credits towards custodial release, while FSA FTCs are time credits towards early placement in prerelease custody. Id.
Because the record is clear that Petitioner is not presently entitled to apply his earned FSA FTCs, Petitioner is not entitled to the relief he seeks in the Petition, the Petition should be denied, and this matter should be terminated.
IV. CONCLUSION
As requested by Respondent's counsel, Bryan Hudson, Interim Warden, Federal Correctional Institution in Phoenix, Arizona (FCI Phoenix), should be substituted as Respondent in this case. Separate motion to dismiss briefing is not necessary as the matters raised by the parties can be decided on the previously ordered briefing and the sufficiently developed record before the Court. Petitioner was required to exhaust his administrative remedies, did not do so, and has not sufficiently demonstrated excuse for failing to exhaust his administrative remedies before filing the Petition. This alone is reason to dismiss the Petition. In addition, Petitioner's claim fails on the merits. Thus, the Petition should be denied without further briefing or an evidentiary hearing, and this matter should be terminated.
Accordingly, IT IS RECOMMENDED that Bryan Hudson, Interim Warden, Federal Correctional Institution in Phoenix, Arizona (FCI Phoenix) be substituted as Respondent in this case and the Clerk of Court directed to update the docket accordingly.
IT IS FURTHER RECOMMENDED that Petitioner Daniel Davenport's pro se Petition Under 28 U.S.C. § 2241 for a Writ of Habeas Corpus by a Person in Federal Custody (Doc. 1) be denied and that the Clerk of Court be directed to terminate this matter.
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) of the Federal Rules of Appellate Procedure should not be filed until entry of the District Court's judgment. The parties shall have fourteen 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, 72. The parties shall have fourteen days within which to file responses to any objections. Failure to file timely 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 file timely objections to any factual determination of the Magistrate Judge may be considered a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the Magistrate Judge's recommendation. See Fed.R.Civ.P. 72.