1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 RAUL BAUTISTA, Case No. 1:23-cv-1122 JLT SKO (HC) 12 Petitioner, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, GRANTING 13 v. RESPONDENT’S MOTION TO DISMISS, DISMISSING PETITION FOR WRIT OF 14 WARDEN, FCI-MENDOTA, HABEAS CORPUS, AND DIRECTING CLERK OF COURT TO ENTER JUDGMENT 15 Respondent. AND CLOSE CASE

16 (Docs. 10, 18) 17 18 Raul Bautista is a federal prisoner proceeding pro se and in forma pauperis with a petition 19 for writ of habeas corpus pursuant to

. Petitioner asserts that he “earned time 20 credits (‘ETC’) which, under the First Step Act, entitle him to immediate transfer into supervised 21 release or pre-release custody, however, the BOP refuses to enable him to apply his ETC’s 22 because he has an immigration detainer….” (Doc. 1 at 6.) Respondent moves to dismiss the 23 petition, arguing Petitioner did not exhaust his administrative remedies and that he is 24 “jurisdictionally and statutorily barred from [First Step Act earned time credit] sentence-offsets 25 due to the final order of removal from another federal court.” (Doc. 10 at 1, 3.) 26 The magistrate judge observed that “[a]ccording to BOP records, Petitioner has been 27 determined ineligible to apply FSA time credits to his sentence, not because of an immigration 28 detainer, but because he is subject to a ‘final order of removal.’” (Doc. 18 at 2.) The magistrate 1 judge noted the final order of removal dated November 19, 2019, was filed under seal with the 2 Court. (Id.) In addition, the magistrate judge found Petitioner did not exhaust his administrative 3 remedies, and that had he done so “the BOP would have advised him of his immigration status 4 and his ineligibility for application of FTCs pursuant to

(d)(4)(E)(i).” (Id. at 4.) 5 Thus, the magistrate judge recommended the petition be dismissed. (Id. at 5.) 6 Petitioner filed objections to the Findings and Recommendations, asserting that he did not 7 see an immigration judge, and only had an “interview” with an Immigration representative who 8 inquired whether Petitioner wanted to “have an expedited removal.” (Doc. 20 at 2.) He contends 9 “nothing more than a ‘notice’ was filed not a ‘final order of removal’ by an Immigration Judge.” 10 (Id. at 1.) He asserts that “[e]ven if a final order of removal was filed this would violate 11 Petitioner’s due process rights in the immigration process.” (Id.) Petitioner maintains that “[t]he 12 Petition should not be dismissed and a copy of the actual final order of removal is necessary.” 13 (Id. at 2.) 14 Significantly, the record before the Court establishes that Petitioner was the subject of a 15 final removal order dated November 19, 2019. (See Doc. 18 at 2; Doc. 231.) Despite Petitioner’s 16 assertions to the contrary in his objections—which were not made under penalty of perjury— the 17 evidence before the Court established an immigration judge issued the removal order. 18 Regardless, Petitioner does not challenge the finding of the magistrate judge that the Court lacks 19 jurisdiction because Petitioner did not exhaust his administrative remedies. 20 To the extent Petitioner now asserts that he suffered a due process violation with the 21 removal process, the Court declines to consider his arguments raised for the first time in the 22 objections. See Syed v. M-I, LLC,

, at *7 (E.D. Cal. Nov. 26, 2014) (“A district 23 court has discretion to consider or decline new arguments raised for the first time in an objection 24 to a findings and recommendations”) (citing Brown v. Roe,

(9th Cir. 2002)); 25 Beckley v. Berryhill,

, at *2 (C.D. Cal. Feb. 8, 2019) (declining to consider an 26 argument raised for the first time in objections to a magistrate judge’s recommendation).

27 1 The Court received a copy of the “Notice and Order of Expedited Removal” with Respondent’s request to seal the document on January 25, 2024. (Docs. 14, 15; see also Doc. 18 at 2.) However, the sealed document was not 28 docketed until April 12, 2024. (Doc. 23.) 1 According to

(b)(1)(C), this Court performed a de novo review of this 2 | case. Having carefully reviewed the entire matter, the Court concludes the Findings and 3 || Recommendations are supported by the record and proper analysis. 4 In the event a notice of appeal is filed, a certificate of appealability will not be required 5 | because this is an order denying a petition for writ of habeas corpus pursuant to

, 6 | and not a final order in a habeas proceeding in which the detention complained of arises out of 7 | process issued by a state court. Forde v. U.S. Parole Commission,

(9th Cir. 1997); 8 | see also Ojo v. INS,

(Sth Cir. 1997); Bradshaw v. Story,

, 166 9 | (10th Cir. 1996). Accordingly, the Court ORDERS: 10 1. The Findings and Recommendations issued on January 31, 2024 (Doc. 18) are 11 ADOPTED in full. 12 2. Respondent’s motion to dismiss (Doc. 10) is GRANTED. 13 3. The petition for writ of habeas corpus is DISMISSED. 14 4. The Clerk of Court is directed to close the case. 15 In the event a notice of appeal is filed, no certificate of appealability is required. 16 7 IT IS SO ORDERED. 1g | Dated: _ April 17, 2024 Charis [Tourn TED STATES DISTRICT JUDGE 19 20 21 22 23 24 25 26 27 28