Opinion
CV-23-00569-TUC-JCH (JR)
05-07-2024
Rene Eduardo Torres, Petitioner, v. Mark Gutierrez, Respondent.
REPORT AND RECOMMENDATION
Honorable Jacqueline M. Rateau, United States Magistrate Judge.
Before the Court is Petitioner Rene Eduardo Torres's (“Petitioner”) Petition Under 28 U.S.C. § 2241 for Writ of Habeas Corpus by a Person in Federal Custody (“Petition”). (Doc. 1.) Pursuant to Local Rule 72.1 and 72.2 of the Local Rules of Civil Procedure, this matter was referred to United States Magistrate Judge Jacqueline Rateau for Report and Recommendation. (Doc. 4.) Respondent filed Return and Answer to Petition For a Writ of Habeas Corpus Under 28 U.SC. § 2241 (“Answer”). (Doc. 9.) Petitioner filed his reply. (Doc. 10.) As more fully set forth below, the undersigned recommends that the district court, after an independent review of the record, dismiss the Petition.
In habeas challenges under 28 U.S.C. § 2241, the only proper respondent is the warden of the facility having physical custody of the petitioner. See Rumsfeld v. Padilla, 542 U.S. 426, 434 (2004). B. Hudson, as the Warden for FCI Tucson, should be substituted as Respondent.
Unless otherwise indicated, all factual references are taken from the exhibits attached to Respondent's combined Return and Answer to Petition For a Writ of Habeas Corpus Under 28 U.S.C. § 2241 and Motion to Dismiss Petition (Doc. 9).
Petitioner is serving a 110-month term of imprisonment for possession with the intent to distribute 100 or more kilograms of marijuana in violation of federal law. (Doc. 9-1 at p. 7 ¶ 18.) His projected release date from the custody of the Bureau of Prisons (“BOP”) is February 7, 2025. Id. On November 20, 2012, Petitioner's eligibility for First Step Act (“FSA”) Time Credits was reviewed and he was deemed eligible to earn FSA Time Credits. Id. at ¶ 19. At his most recent Program Review on July 27, 2023, Petitioner was determined to be a medium risk for recidivism. Id. As a result of his medium recidivism risk classification, the BOP determined that Petitioner is not eligible to have any of his earned Time Credits applied toward prerelease custody or his supervised release term. Id. at ¶ 20. According to the BOP, Petitioner's recidivism risk level will be re-assessed at his next Program Review in June 2024. Id. at ¶ 21.
PETITION, ANSWER AND SUMMARY OF CONCLUSION
Petitioner raises two grounds for relief pertaining to the BOP's failure to apply his FSA Time Credits. (Doc. 1.) In Ground One, Petitioner asserts that 28 C.F.R. § 523.44(B) must be "set aside" because it "changed the words 'shall' be applied to 'may' without the approval of Congress" to give the BOP discretion that was not authorized under 18 U.S.C. § 3632(d)(4)(A)-(C). (Doc. 1 at 4; Doc. 4 at 1.) In Ground Two, Petitioner contends that 18 U.S.C. § 3632(d)(4)(C)'s direction that FSA Time Credits "shall be applied" means that the Director of the BOP "'shall transfer' using 18 U.S.C. § 3624(g)(1)(D)(i)(I) or 18 U.S.C. § 3624(g)(1)(D)(i)(II)(aa)-(cc)." (Doc. 1 at 5; Doc. 4 at 1-2.)
Respondent seeks dismissal of the Petition on several grounds. First, Respondent seeks dismissal on the grounds that Petitioner failed to exhaust his administrative remedies. (Doc. 9 at 5-6.) Next, Respondent urges that the district court lacks subject matter jurisdiction to review the BOP's FSA Time Credits determination. Id. at 6-8. Third, Respondent argues that the district court lacks the authority to compel discretionary BOP action. Id. at 8-9. Respondent next insists that Petitioner does not have a constitutional right to have his FSA Time Credits applied by the BOP in a specific manner. Id. at 9-11. Lastly, Respondent contends the Petition fails on the merits. Id. at 11-12.
As more fully set forth below, this Court finds that the district court has jurisdiction to consider the Petition and that Petitioner's failure to exhaust his administrative remedies should be excused because exhaustion would be futile. This Court further finds that Petitioner does not have a liberty interest in the application of his FSA Time Credits towards prerelease custody. To the extent that Petitioner seeks to have the district court compel the BOP to perform a discretionary function, this Court finds that the district court lacks such authority. This Court also finds that the Petition fails on the merits. For these reasons, this Court recommends that the district court dismiss the Petition.
SUBJECT MATTER JURISDICTION AND EXHAUSTION
Subject Matter Jurisdiction
Respondent contends that the district court lacks subject matter jurisdiction to review the BOP's FSA Time Credits determination. (Doc. 9 at 6-8.) Respondent contends that Petitioner's claim that the BOP wrongfully refused to apply his earned FSA Time Credits towards prerelease custody challenges the BOP's decision making authority provided to it under 18 U.S.C. § 3624. Id. at 8. Respondent urges that judicial review of such decisions are precluded under 18 U.S.C. § 3625. Id. In reply, Petitioner urges that he “did not file an action under 5 U.S.C. Section 702, et seq.[3]” and insists that “Respondent's efforts to bend a 28 U.S.C. Section 2241 petition into something it never was, are misplaced.” (Doc. 10 at 1.)
The Administrative Procedures Act. See 5 U.S.C. 701, et seq.
In the Petition, Petitioner claims that he is “challenging an official B.O.P. policy[.]” (Doc. 1 at 3.) He alleges, inter alia, that:
On January 19, 2022[,] the B.O.P. implemented 28 CFR § 523.44(b) and included the words ‘may apply' instead of ‘shall be applied' and ‘shall transfer' thus giving § 3624(g) more power than § 3632(d)(4)(A)-(C) which reads out the effect of ‘shall be applied' and ‘shall transfer' as commands and instead converts those commands into discretionary decisions by the B.O.P. without approval of Congress.(Doc. 1 at 5.) He requests that the district court grant him the following relief: “To set aside 28 C.F.R. § 523.44(b) and direct my FSA credits be applied.” Id. at 9.
“Federal inmates have two avenues for pursuing habeas corpus relief.” Davenport v. Birkholz, No. CV-23-01362-PHX-DJH (DMF), 2023 WL 9686338, at *3 (D. Ariz. Dec. 27, 2023), report and recommendation adopted, No. CV-23-01362-PHX-DJH, 2024 WL 639987 (D. Ariz. Feb. 15, 2024). “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.” Davenport, 2023WL 9686338, at *3. “Review of the execution of a sentence may be had through a petition for a writ of habeas corpus under 28 U.S.C. § 2241.” United States v. Giddings, 740 F.2d 770, 772 (9th Cir. 1984). A habeas petition challenging the “manner, location or condition of a sentence's execution” must be brought pursuant to 28 U.S.C. § 2241. Davenport, 2023 WL 9686338, at *3 (quoting Hernandez v. Campbell, 204 F.3d 861, 864 (9th Cir. 2000)). A district court must “award the writ or issue an order directing the respondent to show cause why the writ should not be granted, unless it appears from the application that the applicant or person detained is not entitled thereto.” 28 U.S.C. § 2243.
The Petition here is brought under 28 U.S.C. § 2241 and this Court finds that grounds for relief alleged in the Petition regard the “manner, location, or condition” of the execution of Petitioner's sentence. This Court is not persuaded by Respondent's arguments that the district court lacks jurisdiction over the § 2241 Petition. “Although the district court does not have subject matter jurisdiction to review individualized, discretionary determinations made by the BOP, judicial review is available for allegations that a BOP action is contrary to established federal law, violates the United States Constitution, or exceeds the BOP's statutory authority.” Chatmon v. Fed. Bureau of Prisons, No. CV-20-02291-PHX-RCC (CDB), 2021 WL 11421799, at *5 (D. Ariz. Apr. 7, 2021), report and recommendation adopted, No. CV-20-02291-PHX-RCC, 2021 WL 2533469 (D. Ariz. June 21, 2021) (citing Close v. Thomas, 653 F.3d 970, 973-74 (9th Cir. 2011); Reeb v. Thomas, 636 F.3d 1224, 1228 (9th Cir. 2010).). See also Davenport, 2023 WL 9686338, at *4 n.6 (recognizing district court's jurisdiction in § 2241 proceedings to decide whether BOP's actions comported with established federal law, the U.S. Constitution, or within its statutory authority and rejecting Respondent's argument that the Administrative Procedures Act and the district court's lack of authority to review BOP discretionary decisions undermined the district court's § 2241 jurisdiction); Barnes v. Smith, No. CV-11-02413-PHX-DGC, 2012 WL 2590494, at *3 (D. Ariz. July 3, 2012) (recognizing that “[j]udicial review remains available for allegations that BOP action is contrary to established federal law, violates the United States Constitution, or exceeds its statutory authority.”).
In light of the foregoing, this Court recommends that the district court conclude that it has subject matter jurisdiction to consider the Petition.
Administrative Exhaustion
Respondent requests dismissal of the Petition on the grounds that Petitioner did not exhaust his administrative remedies. (Doc. 9 at 5-6.) Petitioner admits that he did not exhaust his administrative remedies. (Doc. 1 at 2-3.) He contends that he did not exhaust his administrative remedies because “[t]he administrative remedies are effectively unavailable[]” and he is “challenging an official B.O.P. policy.” Id. at 3; Doc. 10 at 1.
As a prudential matter, courts require a habeas petitioner to exhaust available administrative remedies before filing a petition for relief under 28 U.S.C. § 2241. See e.g., Reno v. Koray, 515 U.S. 50, 54-55 (1995); Tucker v. Carlson, 925 F.2d 330, 332 (9th Cir. 1991); Martinez v. Roberts, 804 F.2d 570, 571 (9th Cir. 1986); Ruviwat v. Smith, 701 F.2d 844, 845 (9th Cir. 1983). The Ninth Circuit Court of Appeals has recognized that:
[T]he requirement of exhaustion of remedies [is to] aid judicial review by allowing the appropriate development of a factual record in an expert forum; conserve the court's time because of the possibility that the relief applied for may be granted at the administrative level; and allow the administrative agency an opportunity to correct errors occurring in the course of
administrative proceedings.Ruviwat, 701 F.2d at 845. An inmate's failure to exhaust administrative remedies has been excused for futility where the BOP has officially predetermined an issue or where resolution of a claim can be accomplished based solely on statutory interpretation. See Wright v. United States, No. 19-05254, 2019 WL 2746630, at *7 (W.D. Wash. June 5, 2019) (holding that “to the extent the BOP [h]as predetermined the issue, and made it clear that any request [the petitioner] makes to the BOP for calculation of good time credits under the amended statute will be denied, there is no available administrative remedy. Under these circumstances, it would be futile for [the petitioner] to attempt to exhaust his administrative remedies.”); Aguilar v. United States, No. 15-00487, 2015 WL 5719166, at *3 (D. Minn. Sept. 29, 2015) (concluding that exhaustion of administrative remedies is futile where “[t]he facts of this case are undisputed, and the issue is one of statutory interpretation, which is unaffected by any technical matters uniquely within the BOP's area of expertise or by the facts of the case” and “[t]he institutional interests protected by the exhaustion requirement carry little or no weight”); Martinez v. Gutierrez, No. CV 22-00505-TUC-RM (AMM), 2023 WL 6466490, at *3 (D. Ariz. July 14, 2023), report and recommendation adopted, No. CV-22-00505-TUC-RM, 2023 WL 6464850 (D. Ariz. Oct. 4, 2023) (finding administrative exhaustion futile where the petitioner raised a facial challenge to the BOP's implementation of the statutes and regulations governing application of an inmate's FSA Time Credits and it appeared “very likely that the outcome of any further appeals to the Regional Director or the Office of General Counsel would have been consistent with the adverse decisions.”); Johnston v. Colbert, No. CV-22-0260-TUC-SHR (EJM), 2023 WL 9510557, at *3 (D. Ariz. Aug. 15, 2023), report and recommendation adopted, No. CV-22-00260-TUC-SHR, 2024 WL 418123 (D. Ariz. Feb. 5, 2024) (excusing inmate's failure to exhaust in § 2241 action where the petitioner was seeking relief with respect to the application of FSA Time Credits where “the factual record is adequately developed, and nothing in the record suggests that further administrative review would aid judicial review.”)
Here, it appears from the briefing that Petitioner's claim will remain unresolved at the administrative level. The BOP has determined that Petitioner is not eligible to have his earned FSA Time Credit applied because of his medium recidivism risk classification. Petitioner is not challenging this medium recidivism risk classification by the BOP. Rather, Petitioner is challenging the BOP's authority under the applicable statutes and regulations.
Considering the applicable law and the circumstances of this case, this Court concludes that the exhaustion requirement should be waived.
THE FIRST STEP ACT TIME CREDITS
Enacted into law in December 2018, the FSA addresses the reentry of incarcerated individuals into society. Thigpen v. Heisner, CV 23-01359-PHX-ROS (CDB), 2024 WL 1705256, at *2 (D. Ariz. Mar. 4, 2024), report and recommendation adopted, No. CV-23-01359-PHX-ROS, 2024 WL 1702275 (D. Ariz. Apr. 19, 2024). As part of the FSA, Congress directed the BOP to implement reentry initiatives, including programming and programming incentives, good-time credit, and compassionate release opportunities. Id. Pursuant to congressional directive, the United States Attorney General is responsible for developing 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.” Thigpen, 2024 WL 1705256, at *2 (quoting 18 U.S.C. § 3632(a)). “An eligible prisoner can earn 10 days (plus an additional five days if he meets the criteria for minimum or low risk of recidivism) of FSA time credits ‘for every 30 days of successful participation in evidence-based recidivism reduction programming or productive activities.'” Thigpen, 2024 WL 1705256, at *2 (quoting 18 U.S.C. § 3632(d)(4)(A); 28 C.F.R. § 523.42(c)).
“Time credits earned under 18 U.S.C. § 3632(d)(4) ‘shall be applied toward time in prerelease custody or supervised release'. . .” Thingpen, 2024 WL 1705256, at *2 (quoting 18 U.S.C. § 3632(d)(4)(C)). Under 18 U.S.C. § 3624(g), an “eligible prisoner” for the application of Time Credits into prerelease custody or supervised release is defined as one who meets the following four criteria:
(A) the prisoner must have earned FSA Time Credits;
(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) (i) 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.Thigpen, 2024 WL 1705256, at *2 (quoting 28 U.S.C. § 3624(g)(A)-(D)(i)) (italics in Thigpen).
Petitioner Lacks a Liberty Interest in His FSA Time Credits
Respondent argues that Petitioner does not have a liberty interest in the application of his FSA Time Credits towards prerelease custody because 18 U.S.C. § 3624(g) affords the BOP with discretion to determine which prerelease custody an “eligible prisoner” will receive. (Doc. 9 at 9-11.) This Court agrees.
When a statute confers discretion on government action, no liberty interest is created. See Olim v. Wakinekona, 461 U.S. 238, 249 (1983) (recognizing that “[i]f the decisionmaker is not ‘required to base its decisions on objective and defined criteria,' but instead ‘can deny the requested relief for any constitutionally permissible reason or for no reason at all,' ibid., the State has not created a constitutionally protected liberty interest.”). Section § 3624(g), Title 28, U.S.C., affords the BOP discretion on whether to place a prisoner in prerelease custody or onto supervised release. See 28 U.S.C. § 3624(g)(3) (stating, inter alia, “. . . the Director of the Bureau of Prisons may transfer the prisoner to begin any such term of supervised release . . .”). This Court determines that Petitioner does not have a constitutional right to have his earned FSA Time Credits applied in a specific manner, such as requesting that he be granted prerelease custody or home confinement. See Greenholtz v. Inmates of Nebraska Penal & Corr. Complex, 442 U.S. 1, 7 (1979) (holding that “[t]here is no constitutional or inherent right of a convicted person to be conditionally released before the expiration of a valid sentence.”); Gutierrez-Chavez v. I.N.S., 298 F.3d 824, 827 (9th Cir. 2002) (noting that relief under § 2241 is not available to challenge purely discretionary decisions), amended, 337 F.3d 1023 (9th Cir. 2003). See also Mars, 2023 WL 4977335, at *7 (holding that “18 U.S.C. § 3624(g) affords the BOP discretion on whether to place [p]etitioner in prerelease custody or onto supervised release” and “[w]hen a statute confers discretion on government action, no liberty interest is created”); Smallwood v. Thompson, No. 2:21-CV-0641-JAM-DMC-P, 2021 WL 5112663, at *3 (E.D. Cal. Nov. 3, 2021), report and recommendation adopted, 2021 WL 6113789 (E.D. Cal. Dec. 27, 2021) (holding that petitioner failed to state a claim under § 2241 reasoning that “the denial of early release in the exercise of the BOP's discretion [does] not give rise to the deprivation of a liberty interest such as would support Petitioner's claim.”)
The District Court Lacks Authority to Compel Discretionary BOP Action and Petitioner's Request for Application of his FCA Time Credits is Meritless
Respondent argues that to the extent that Petitioner seeks application of his FSA Time Credits he is not entitled to relief because that decision is within the discretion of the BOP. He urges that the district court lacks the authority to compel the BOP to perform a discretionary action. (Doc. 9 at 8-9.) This Court agrees with Respondent.
Other courts in this district have determined that a petitioner seeking judicial application of his FSA Time Credits is not entitled to judicial relief because “the challenged decision is committed to the discretion of the BOP.” Thigpen, 2024 WL 1705256, at *3 (citing Reeb, 636 F.3d at 1227). Thigpen recognized:
Whether to permit an inmate to complete the end-phase of their sentence outside of formal prison custody is a matter of discretion left to the BOP. See Smallwood v. Thompson, 2021 WL 5112663 (E.D. Cal. Nov. 3, 2021) (finding “whether or not to grant Petitioner early release” pursuant to the FSA is “a matter within the BOP's discretion.”). And although application of an inmate's FSA FTCs may effectively move up the date that inmate is eligible to be considered for prerelease custody, application of those FTCs do not compel the BOP to allow that inmate to participate in prerelease custody. Id. “District courts interpreting this provision have uniformly held
that designation and placement decisions made by the BOP, including whether an inmate is granted home confinement, are not reviewable by the district court.” Arreola v. von Blanckensee, No. CV-20-00351-TUC-DCB (JR), 2022 WL 18865120, at (D. Ariz. Oct. 3, 2022), report and recommendation adopted, No. CV-20-00351-TUC-DCB, 2023 WL 2242853 (D. Ariz. Feb. 27, 2023). See also Wilcox v. Merlak, No. 1:19-cv-01410-NONE-SKO (HC), 2020 WL 996630, at *3 (E.D. Cal. Mar. 2, 2020) (“Thus, Petitioner's challenge to the BOP's discretionary decision with respect to whether and when he is eligible for home confinement placement . . . is not reviewable by this Court.”); United States v. Robledo, No. 18-CR-2190-AJB, 2020 WL 2542641, at *7 (S.D. Cal. May 19, 2020) (“the decision to grant or deny home confinement is within the discretion of BOP and not subject to judicial review.”).Thigpen, 2024 WL 1705256, at *3 (quoting Mars v. Heisner, 2023 WL 4977335, at *6 (D. Ariz. June 26, 2023), report and recommendation adopted, 2023 WL 4960411 (D. Ariz. Aug. 3, 2023)).
In his reply, Petitioner relies upon Jones v. Engleman and Pers. Doe v. Fed. Bureau of Prisons, to argue that the BOP has no discretion to withhold the application of his FSA Time Credits. (Doc. 10 at 2.) This Court finds both cases inapposite. The district court in Jones v. Engleman considered “whether the [First Step Act] allows the BOP to implement a policy precluding federal prisoners with pending criminal charges or detainers from having their accrued [time credits under the First Step Act] applied to afford them early release.” No. 2:22-cv-5292-MCS (GJS), 2022 WL 6563744, at *8 (C.D. Cal. Sept. 7, 2022), report and recommendation accepted in part and rejected in part, 2022 WL 6445565 (C.D. Cal. Oct. 7, 2022). Finding that the BOP did not have such authority, the district court in Jones granted the petitioner habeas relief. Id. The case of Pers. Doe v. Fed. Bureau of Prisons, involved whether the FSA authorizes the BOP to exercise its discretion to withhold the application of an eligible prisoner's accrued FSA Time Credits as a result of the eligible prisoner's participation in a prisoner-witness agreement. No. 1:23-cv-05965 (AT) (JCL) (Order, Doc. 34.) (S.D.N.Y. Dec. 28, 2023). Significantly, it was undisputed that both petitioners in Jones and Pers. Doe were eligible prisoners for discretionary prerelease custody placement under the FSA. See Jones, 2023 WL 6563744, at *4 (noting that “[Respondent concedes that [petitioner's calculation of the amount of his ETCs is correct and that he would qualify for early release under the FSA but for the pending Missouri criminal case.”); Pers. Doe., 1:23-cv-5965, (Report and Recommendation filed under seal, Doc. 33 at p. 10)).
Here, Respondent has established that Petitioner is ineligible to have his FSA Time Credits applied by the BOP because of his medium recidivism risk classification that he received at his last Program Review. (Doc. 9-1 at 7, ¶¶ 18-20.) Stated another way, Petitioner is not an “eligible prisoner.” See 18 U.S.C. 3624(g)(1) (defining “eligible prisoner” for the application of FSA Time Credits). Indeed, Petitioner will not become eligible to have any earned FSA Time Credits applied unless and until he has lowered his recidivism risk level to that required by the FSA.
Petitioner does not dispute that his recidivism risk classification is medium as determined by the BOP. (Doc. 1; Doc. 10.) Instead, Petitioner focuses his argument solely on the “shall apply” and “shall be applied” language of the FSA. As set forth above, the “shall apply” language is applicable only to an “eligible prisoner.” As explained above, Petitioner is not an “eligible prisoner.”
Finally, Respondent argues for dismissal of the Petition because Petitioner's sentence has been properly calculated, and he is statutorily precluded from applying his FSA Time Credits toward prerelease custody. (Doc. 9 at 8-9.) Again, this Court agrees. As recognized by Mars:
Section 3624(g) sets forth the process for how FSA time credits are applied to create an earlier release date for eligible prisoners. Section 3624(g) requires, for placement in prerelease custody, 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, § 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.” Id. § 3624(g)(1)(D)(ii). The clear language of 18 U.S.C. § 3624(g) precludes application of time credits until an inmate has lowered his recidivism risk level to a low or minimum classification.Mars, 2023 WL 4977335, at *7 (citing LaPuente, 2023 WL 3821136, at *5 (holding that “[b]ecause [petitioner's] risk level was never lowered to minimum or low risk, he is ineligible to apply any earned FSA credits.”)). See also Thigpen, 2024 WL 1705256, at *3 (holding that “18 U.S.C. 3624(g) precludes application of Thigpen's earned time credits until, or unless, he lowered his recidivism risk level as required by the FSA.”); Davenport, 2023 WL 9686338, at *7 (D. Ariz. Dec. 27, 2023) (holding that, “[b]ecause 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 [p]etition . . .”); Johnston, 2023 WL 9510557, at *8 (D. Ariz. Aug. 15, 2023) (holding that “to the extent that [p]etitioner believes that he should be entitled to the application of time credit, such an argument is also without merit. [p]etitioner has a high risk of recidivism at the time of his last assessment [. . . ] Accordingly, he does not meet the criteria of an eligible inmate. See 18 U.S.C. § 3624(g)(1)(B).); Martinez, 2023 WL 6466490, at *4 (holding that “[t]he uncontested record reflects that [p]etitioner's second-to-last reassessment determined that he had a high recidivism risk, and his last reassessment determined a medium risk . . . Therefore, [he] is not an ‘eligible prisoner' pursuant to § 3624(g).”).
As laid out above, it is undisputed that Petitioner is classified as a medium risk recidivate. It is also undisputed that the Warden has not provided specific approval for Petitioner to be moved to prerelease custody. Appropriately then, Petitioner is not eligible for the application of his FSA Time Credits unless and until his recidivism level has been lowered such that he meets the FSA requirement for application of earned FSA Time Credits. Thus, he not an eligible prisoner pursuant to 18 U.S.C. § 3634(g). Petitioner's assertion that “the B.O.P. implemented 28 C.F.R. § 523.44(b) and included the words ‘may apply' instead of ‘shall be applied' and ‘shall transfer' . . . without the approval of Congress” is unsupported and without merit. (Doc. 1 at 3, 5.)
For the reasons set forth above, Petitioner is not entitled to the relief that he seeks. This Court thus recommends that the Petition be denied.
RECOMMENDATION
B. Hudson, the Warden for FCI Tucson, should be substituted as Respondent and, for the foregoing reasons, the Magistrate Judge RECOMMENDS that the district court, after its independent review, DENY the Petition (Doc. 1).
Pursuant to Federal Rule of Civil Procedure 72(b)(2), any party may serve and file written objections within fourteen days of being served with a copy of the Report and Recommendation. A party may respond to the other party's objections within fourteen days. No reply shall be filed unless leave is granted by the district court. If objections are not timely filed, they may be deemed waived. Failure to file timely objections to any factual or legal determination of the Magistrate Judge may be considered a waiver of a party's right to de novo consideration of the issues. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc). If objections are filed, the parties should use the following case number: CV-23-569-TUC-JCH.