Franco v. Gunther

6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Raymond A.S. Franco, No. CV-25-00389-PHX-JJT (ESW) 10 Petitioner, ORDER v. Jason Gunther, 13 Respondent.

15 Before the Court is the Report and Recommendation (Doc. 14, “R&R”) submitted by United States Magistrate Judge Eileen S. Willett concluding that this Court should dismiss without prejudice Raymond A.S. Franco’s Petition for a Writ of Habeas Corpus Under 28 U.S.C. § 2241 (Doc. 1, “Petition”). In the R&R, Judge Willett warned the parties that any objections thereto were due fourteen days after service of the R&R. Petitioner Franco filed a document in this matter on August 8, 2025, which the Court will deem timely as Petitioner appears to have both received the R&R through U.S. Mail and to have sent his submission the same way. And although Petitioner’s submission is styled as a “Reply to Return and Answer to Petition” (Doc. 15), the Court will treat it as Petitioner’s Objections to the R&R. The Court will do so because any reply would be more than three months late, and the only submission pending at this point would be an objection to the R&R. 27 Treating the submission as an Objection, the Court will overrule it. Petitioner raised 2 grounds for habeas relief in his Petition: 1) the Bureau of Prisons did not allow Petitioner, as an inmate with a high or medium recidivism risk classification, to apply his earned time credits, or “ETC’s,” toward his sentence until he received a minimum or low risk classification; and 2) the Burean denied Petitioner ETCs from the date he was sentenced until the time he arrived at his BOP designated facility. (R&R at 2.)

5 In his Objections, Petitioner did not address Ground 2 or Judge Willett’s recommendation regarding it. Therefore, he may be deemed not to have objected to or opposed this recommendation. The Court nonetheless independently reviewed the merits of Judge Willett’s bases for her recommendation as to Ground 2. After so doing, the Court in any event concludes Judge Willett’s reasoning and application of law as set forth in 18 U.S.C. 3624(g)(1)(A) is sound. That section makes clear that earned time credits can be applied toward pre-release custody or supervised release only when accumulated credits equal the remainder of the prison term; Petitioner is several years from that point. See also Tumbaco v. Birkholz, No. 23-CV-10663-FMO-AJR, 2024 WL 4744025 at *2 (C.D. Cal. Oct. 9, 2024). Thus, any habeas claim on this ground is much premature.

15 Petitioner’s entire Objection focused on Ground 1 of the Petition. But he raised no argument demonstrating how Judge Willett misapplied or misinterpreted applicable law.

17 Rather, Petitioner simply recites the law and for several pages, discusses the policy considerations that would be served by interpreting the law as he would prefer. Even if the Court agreed with Petitioner’s policy preference, it cannot decide a matter on that basis in contravention of the existing law. For those reasons the Court must overrule Petitioner’s Objection to the R&R’s conclusion as to Ground 1.

22 For the above reasons, 23 IT IS ORDERED overruling Petitioner’s Objection to Ground 1.

24 IT IS FURTHER ORDERED adopting in whole Judge Willett’s R&R (Doc. 14) and dismissing without prejudice the Petition for a Writ of Habeas Corpus Under 28 U.S.C. § 2241 (Doc. 1).

27 IT IS FURTHER ORDERED denying a certificate of appealability and leave to proceed in forma pauperis on appeal. In this matter, elements of dismissal are justified by a plain procedural bar, and as to the remaining elements, Petitioner has not shown a 2|| violation of a federal Constitutional or statutory right. As to both aspects, this Court || concludes reasonable jurists would not find the ruling debatable.

4 IT IS FURTHER ORDERED directing the Clerk of Court to terminate this matter.

5 Dated this 15th day of September, 2025. CN 7 wife holee— Unifgd State#District Judge -3-