1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 SHIRLEY SORIANO, Case No. 18-cv-06648-WHO (PR)

Petitioner, 8 ORDER OF DISMISSAL v. 9

10 W. Z. JENKINS, Dkt. No. 10 Respondent. 11

12 13 INTRODUCTION 14 This

federal habeas action is DISMISSED upon respondent’s 15 motion because petitioner Shirley Soriano did not exhaust her administrative remedies and 16 she has not shown that exhaustion should be excused. Her argument that the process 17 would have been futile is contradicted by the record, which shows that the administrative 18 process after she received her disciplinary decision on September 21, 2018, would have 19 been completed well prior to any transfer to a halfway house (which occurred by June 5, 20 2019). 21 BACKGROUND 22 Soriano was a federal prisoner housed at FCI-Dublin when she filed suit. (Pet., Dkt. 23 No. 1 at 1.) She was serving a 30-month sentence for convictions under

1320a-7b(b)(2)(A) (Illegal Remunerations for Health Care Referrals). (MTD, Dkt. No. 10 25 at 3.) Her projected release date was October 28, 2019. (Id.) 26 In September 2018, she was found guilty of violating prison rules regarding the use 27 of mail and the telephone. (Id. at 2; Mot. to Dismiss (MTD), Dkt. No. 10 at 3.) A 14-day 1 Dkt. No. 1 at 1.) She was informed that she had the right to appeal the disciplinary 2 decision. (MTD, Dkt. No. 10 at 5.) She did not. (Opp., Dkt. No. 11 at 1.) She feared that 3 participating in the exhaustion process would take too long and result in the delay by two 4 weeks of her transfer to a halfway house. (Id. at 1-2.) 5 At least as of June 5, 2019, Soriano’s custody was transferred from FCI-Dublin to a 6 halfway house in Los Angeles. (Soriano Letter, Dkt. No. 13.) 7 STANDARD OF REVIEW 8 Section 2241 allows “the Supreme Court, any justice thereof, the district courts and 9 any circuit judge” to grant writs of habeas corpus “within their respective jurisdictions.” 10

(a). The Court may entertain a petition for writ of habeas corpus from a 11 person claiming to be “in custody in violation of the Constitution or laws or treaties of the 12 United States.”

(c)(3). 13 DISCUSSION 14 There is no doubt that Soriano did not exhaust her administrative remedies. She 15 argues that the exhaustion obligation should be excused for futility. She believes that “she 16 would likely be released [to a halfway house] prior to the finality of the administrative 17 process,” (Opp., Dkt, No. 11 at 1-2), a process she asserts takes “more than five months” to 18 complete, (id. at 2). A court ruling in her favor, should exhaustion be excused and the 19 disciplinary decision voided, would have accelerated her transfer to a halfway house by 20 two weeks (from May 28-June 28 to May 14-June 14). (Id. at 1-2.) As it happened, the 21 transfer occurred at least by June 5, 2019, the date of a letter from her to the Court 22 informing it of her new address. That date was within her requested range (May 14 to June 23 14) and the later range. (Dkt. No. 13.) 24 Respondent contends that Soriano’s futility argument “misplaced.” (Reply, Dkt. 25 No. 12 at 4.) I agree. Assignment to a Residential Reentry Center such as a halfway house 26 is “completely discretionary and generally not subject to judicial review.” (Id.) Moreover, 27 there is no support for her assertion that the review process would have taken too long. 1 her assertions, the review process would have been completed five months later, on 2 February 21, 2019, roughly three months before her projected halfway house transfer 3 dates. 4 Section 2241 does not require that a habeas petitioner exhaust administrative 5 remedies prior to filing suit. But the Ninth Circuit does “require, as a prudential matter, 6 that habeas petitioners exhaust available judicial and administrative remedies before 7 seeking relief under § 2241.” Castro-Cortez v. INS,

, 1047 (9th Cir. 2001) 8 (abrogated on other grounds by Fernandez-Vargas v. Gonzales,

(2006)). 9 “Prudential limits, like jurisdictional limits and limits on venue, are ordinarily not 10 optional.”

11 “[T]here are a number of exceptions to the general rule requiring exhaustion, 12 covering situations such as where administrative remedies are inadequate or not 13 efficacious, pursuit of administrative remedies would be a futile gesture, irreparable injury 14 will result, or the administrative proceedings would be void.” Laing v. Ashcroft,

994, 1000 (9th Cir. 2004) (quoting S.E.C. v. G.C. George Sec., Inc.,

, 688 (9th 16 Cir. 1981)). “Specifically, exhaustion of administrative remedies may not be required 17 when (1) available remedies provide no genuine opportunity for adequate relief; 18 (2) irreparable injury may occur without immediate judicial relief; (3) administrative 19 appeal would be futile; and (4) in certain instances a plaintiff has raised a substantial 20 constitutional question.” Id. (quoting Beharry v. Ashcroft,

(2nd Cir. 21 2003)). 22 Soriano has not shown a good reason for her failure to exhaust. If one credits her 23 assertions regarding exhaustion, administrative review would have been completed well 24 before her projected halfway house transfer date. She has not shown that the available 25 remedies would not have provided a genuine opportunity for adequate relief, or that 26 irreparable injury might have occurred, or that the process would have been futile, or that 27 she raised a substantial constitutional question. Indeed, any injury she suffered is not 1 |} wanted. Because residential reentry placement is discretionary, there has been no showing 2 || that a court ruling in her favor — had exhaustion been excused — would have accelerated 3 || her halfway house placement date. 4 CONCLUSION 5 Respondent’s motion to dismiss the petition is GRANTED. The petition is 6 || DISMISSED. The Clerk shall terminate all pending motions, enter judgment in favor of 7 || respondent, and close the file. 8 IT ISSO ORDERED. 9 Dated: December 6, 2019 . \f 10 . ILLIAM H. ORRICK 11 United States District Judge qa 12

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