(HC) French v. Young

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA DARIN JEROME FRENCH, Case No. 1:19-cv-01306-EPG-HC 12 Petitioner, ORDER TO SHOW CAUSE WHY PETITION SHOULD NOT BE DISMISSED 13 v. FOR FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES S. YOUNG, 15 Respondent.

17 Petitioner Darin Jerome French is a federal prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. In the petition, Petitioner asserts that he is entitled to release to home confinement or a halfway house pursuant to the changes enacted under the First Step Act.

21 I.

22 DISCUSSION 23 Rule 4 of the Rules Governing Section 2254 Cases1 requires preliminary review of a habeas petition and allows a district court to dismiss a petition before the respondent is ordered to file a response, if it “plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court.”

27 1 The Rules Governing Section 2254 Cases apply to § 2241 habeas petitions. See Rule 1(b) of the Rules Governing Section 2254 Cases (“The district court may apply any or all of these rules to a habeas corpus petition not covered 1 “As a prudential matter, courts require that habeas petitioners exhaust all available | judicial and administrative remedies before seeking relief under § 2241.” Ward v. Chavez, 678 | F.3d 1042, 1045 (9th Cir. 2012) (citations omitted). The exhaustion requirement is subject to | waiver in § 2241 proceedings if pursuing available remedies would be futile. Id. The Federal | Bureau of Prisons (“BOP”) Administrative Remedy Program is set forth at 28 C.F.R. § 542.10 et | seq.

7 Here, it appears that Petitioner has failed to take any action to complete the BOP’s | Administrative Remedy Program. The petition states that Petitioner “has overstayed his release | date by months and months, and exhaustion does not provide a remedy (illusory).” (ECF No. 1 at | 5). However, the fact that Petitioner believes he should have been released earlier based on | changes enacted under the First Step Act does not establish that pursuing administrative relief | would be futile. Petitioner does not demonstrate that an official policy of the BOP would deny | him the benefits of the changes enacted under the First Step Act. See Ward, 678 F.3d at 1046 | (“Because of the existence of official BOP policy .. . exhaustion would be futile[.]’”)

15 I.

16 ORDER 17 Accordingly, IT IS HEREBY ORDERED that Petitioner SHALL SHOW CAUSE why | the petition should not be dismissed for failure to exhaust administrative remedies within | THIRTY (30) days from the date of service of this order.

20 Petitioner is forewarned that failure to follow this order may result in dismissal of the | petition pursuant to Federal Rule of Civil Procedure 41(b) (a petitioner’s failure to prosecute or | to comply with a court order may result in a dismissal of the action).

IT IS SO ORDERED.

25| Dated: _ October 10, 2019 [Je hey — %6 UNITED STATES MAGISTRATE JUDGE