1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JAKE WARREN POWERS, No. 1:24-cv-01142-KES-EPG (HC) 12 Petitioner, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, DISMISSING 13 v. PETITION FOR WRIT OF HABEAS CORPUS WITHOUT PREJUDICE, AND 14 WARDEN, DIRECTING CLERK OF COURT TO CLOSE CASE 15 Respondent. (Doc. 9) 16 17 Petitioner Jake Warren Powers is a federal prisoner proceeding pro se with a petition for 18 writ of habeas corpus pursuant to

. This matter was referred to a United States 19 Magistrate Judge pursuant to

(b)(1)(B) and Local Rule 302. 20 On November 12, 2024,1 the assigned magistrate judge issued findings and 21 recommendations that recommended dismissing the petition for nonexhaustion. Doc. 9. The 22 findings and recommendations were served on the parties and contained notice that any 23 objections were to be filed within thirty (30) days of the date of service of the findings and 24 recommendations.

On December 18, 2024, petitioner filed objections. Doc. 10. 25 In accordance with the provisions of

(b)(1), the Court has conducted a de 26 novo review of the case. Having carefully reviewed the file, including petitioner’s objections, the 27 1 The findings and recommendations were signed on November 11, 2024, but not docketed until 28 November 12, 2024. 1 Court holds the findings and recommendations to be supported by the record and proper analysis. 2 The findings and recommendations correctly explained that no exception to the exhaustion 3 requirement applies. Doc. 9 at 2–3. Furthermore, the reasons courts typically demand that a 4 petitioner exhaust administrative remedies before coming to federal court are present here: 5 exhaustion of administrative remedies will “allow[] the appropriate development of a factual 6 record in an expert forum; conserve the court’s time because of the possibility that the relief 7 applied for may be granted at the administrative level; and allow the administrative agency an 8 opportunity to correct errors occurring in the course of administrative proceedings.” Ruviwat v.

F.2d 844, 845 (9th Cir. 2023). Development of a factual record is particularly 10 important here because petitioner’s claims are fact-dependent and evidence of those facts is 11 noticeably lacking; petitioner’s filings do not include any supporting documentation, including 12 any documentation to support his assertion that he completed programs which would entitle him 13 to Second Chance Act credits. See Docs. 1, 7, 10. 14 In his objections, petitioner asserts that a correctional officer told petitioner that prison 15 staff would not consider granting the relief that petitioner requests here if he were to initiate the 16 informal resolution process called for by

. See Doc. 10 at 1. Petitioner also 17 asserts that he did not raise this concern earlier because he feared retaliation from prison staff. 18 See

Courts have routinely held, however, that an unsupported allegation of this nature is 19 insufficient to defeat dismissal. See, e.g., M.F. v. Reish, No. 95 Civ. 4904 (SAS),

221601, at *3 n.4 (S.D.N.Y. May 1, 1996) (rejecting prisoners’ arguments that they should be 21 excused from exhaustion requirements based on unsupported allegation that prison staff refused 22 to provide grievance forms and noting that they could have but did not raise the issue with the 23 prison staff’s superiors); Paulino v. Garcia, No. 02 Civ. 209 (LAP),

, at *3 24 (S.D.N.Y. Aug. 12, 2003) (collecting cases that a prisoner cannot defeat a motion to dismiss for 25 failure to exhaust by making an “unsupported argument that the BOP made it impossible to 26 exhaust administrative remedies”). Furthermore, even if the correctional officer had made such a 27 statement, this would not be sufficient for the Court to find that the entire BOP grievance process 28 had been rendered futile. The correctional officer’s alleged statement is not evidence that the 1 | warden or any other superior of the correctional officer would have denied petitioner’s request. 2 Moreover,

(d)(1) permits a prisoner to submit his initial filing directly 3 || to the Regional Director if “the inmate reasonably believes the issue is sensitive and the inmate’s 4 | safety or well-being would be placed in danger if the Request became known at the institution.” 5 | To the extent petitioner feared retaliation from prison staff, he could have submitted his initial 6 | filing directly to the Regional Director. Cf Reish,

, at *3 n.4 (noting that if 7 || prisoners were denied help from prison staff with their grievance forms, they could contact the 8 | Regional Director or General Counsel). Petitioner’s objections thus do not warrant a different 9 | result than that recommended by the magistrate judge. 10 In the event a notice of appeal is filed, a certificate of appealability will not be required 11 | because this is an order denying a petition for writ of habeas corpus pursuant to

, 12 | nota final order in a habeas proceeding in which the detention complained of arises out of 13 | process issued by a state court. Forde v. U.S. Parole Commission,

(9th Cir. 1997); 14 | see Ojo v. INS,

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

(10th 15 | Cir. 1996). 16 Accordingly: 17 1. The findings and recommendations issued on November 12, 2024, Doc. 9, are 18 ADOPTED in full; 19 2. The petition for writ of habeas corpus is DISMISSED without prejudice; and 20 3. The Clerk of Court is directed to close the case. 21 22 93 | SO ORDERED. _ 24 Dated: _ January 19, 2025 4h 35 UNITED STATES DISTRICT JUDGE

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