UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES – GENERAL

Case No. 2:23-cv-07747-SPG-AJR Date: September 21, 2023 Page 1 of 3

Title: Mauricio Herrera Hernandez v. B. Birkholz, Warden

DOCKET ENTRY: ORDER TO SHOW CAUSE WHY THE PETITION SHOULD NOT BE DENIED BECAUSE PETITIONER IS STATUTORILY INELIGIBLE FOR TIME CREDITS

PRESENT:

HONORABLE A. JOEL RICHLIN, UNITED STATES MAGISTRATE JUDGE

_ Claudia Garcia-Marquez _______None_______ __None__ Deputy Clerk Court Reporter/Recorder Tape No.

ATTORNEYS PRESENT FOR PETITIONER: ATTORNEYS PRESENT FOR RESPONDENT:

None Present None Present

PROCEEDINGS: (IN CHAMBERS)

On September 5, 2023, Mauricio Herrera Hernandez, (“Petitioner”), a federal prisoner proceeding pro se, filed a habeas petition pursuant to

(the “Petition”). (Dkt. 1.) Petitioner was convicted by the Eastern District of Virginia and sentenced on March 9, 2022 to a term of imprisonment of 38 months. (Id. at 2.) Petitioner is “not challenging the sentence or conviction,” but instead is “challenging the way [his] sentence is being carried out.” (Id. at 7.) Specifically, Petitioner contends that he has been wrongfully denied the benefit of good time credits under the First Step Act “due to a final order of deportation that was lodged against him from I.C.E.” (Id. at 4.) Petitioner has attached to his Petition an Immigration Detainer – Notice of Action which states that there is “[a] final order of removal against the alien” and that “[b]iometric confirmation of the alien’s identity and a records check of federal databases . . . affirmatively indicate . . . that the alien either lacks immigration status or notwithstanding such status is removable under U.S. immigration law.” (Id. at 10.) UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES – GENERAL

Case No. 2:23-cv-07747-SPG-AJR Date: September 21, 2023 Page 2 of 3

Title: Mauricio Herrera Hernandez v. B. Birkholz, Warden

Petitioner is advised that the plain language of the First Step Act renders a prisoner ineligible for time credits if they are subject to a final order of removal:

“A prisoner is ineligible to apply time credits under subparagraph (C) if the prisoner is the subject of a final order of removal under any provision of the immigration laws (as such term is defined in section 101(a)(17) of the Immigration and Nationality Act (

(a)(17))).”

(d)(4)(E)(i). Therefore, Petitioner appears to be statutorily ineligible for earned time credits under the First Step Act and cannot obtain the relief he seeks by his Petition. See Felix-Felix v. Engleman, No. CV 23-1722 CJC (PVC),

, at *3 (C.D. Cal. May 11, 2023) (“Because Petitioner is subject to a final order of removal, the relevant provisions of the First Step Act do not apply to him. Section 3632(d)(4)(E)(i) categorically bars early release for inmates who are subject to a final order of removal . . . .”), report and recommendation adopted, No. CV 23-1722 CJC (PVC),

(C.D. Cal. June 7, 2023); Alatorre v. Derr,

, at *4 (D. Haw. Mar. 22, 2023) (“[F]ederal prisoners who are ‘subject to a final order of removal under any provision of the immigration laws’ cannot apply earned time credits.”) (quoting

(d)(4)(E)(i)); Villegas-Escobar v. Derr,

, at *2 (D. Haw. Feb. 14, 2023) (“Section 3632 also provides that certain prisoners are ineligible to receive time credits, such as those who are ‘subject to a final order of removal under any provision of the immigration laws,’

(d)(4)(E)(i), and those who have been convicted of certain enumerated offenses,

(d)(4)(D) (listing 49 offenses).”).

Despite the documentation stating that Petitioner is subject to a final order of removal, Petitioner appears to dispute the existence of the final order of deportation. (Dkt. 1 at 4 (“Petitioner does not have a final order of deportation . . . .”).) Additionally, Petitioner appears to contend that the Immigration Detainer – Notice of Action only supports the existence of an immigration detainer and not a final order of deportation. (Dkt. 1 at 5 (The BOP is interpreting a detainer as a final order of deportation.”).) However, as referenced above, the Immigration Detainer – Notice of Action specifically states that there is “[a] final order of removal against the alien.” (Id. at 10.) Therefore, this document appears to provide UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES – GENERAL

Case No. 2:23-cv-07747-SPG-AJR Date: September 21, 2023 Page 3 of 3

Title: Mauricio Herrera Hernandez v. B. Birkholz, Warden

evidence of a final order of removal and Petitioner appears to be statutorily ineligible for time credits under the First Step Act.

Petitioner is therefore ORDERED TO SHOW CAUSE, within twenty-one (21) days of the date of this Order, why the Petition should not be denied because Petitioner is statutorily ineligible for time credits under the First Step Act. Petitioner may satisfy this Order by filing a declaration, signed under penalty of perjury, setting forth any reason why he is eligible for time credits under the First Step Act.

Petitioner is expressly warned that failure to timely file a response to this Order may result in a recommendation that this action be dismissed with prejudice for his failure to comply with Court orders and failure to prosecute. See Fed. R. Civ. P. 41(b). Petitioner is further advised that if he no longer wishes to pursue this action, he may voluntarily dismiss it by filing a Notice of Dismissal in accordance with Federal Rule of Civil Procedure 41(a)(1). A form Notice of Dismissal is attached for Petitioner’s convenience.

IT IS SO ORDERED.

Attachment: CV-09, Notice of Dismissal Pursuant to Federal Rules of Civil Procedure 41(a) or (c).