1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JAMES CHRISTOPHER CASTLE, No. 2:24-cv-1722 CKD P 12 Petitioner, 13 v. ORDER 14 BUREAU OF PRISONS, 15 Respondent. 16 17 Petitioner is a federal prisoner proceeding pro se with an application for writ of habeas 18 corpus under

. Petitioner is serving a combined sentence of 180 months in 19 prison for several offenses related to his defrauding financial institutions. 2:15-CR-0190 KJM 20 CSK, ECF No. 795. Sentence was imposed on May 10, 2022.

at ECF 792. Petitioner’s 21 projected release date is April 21, 2030. ECF No. 12-1 at 15. 22 I. Petitioner’s Claims 23 Petitioner claims he is entitled to more sentence credit under the 2018 “First Step Act” (FSA) 24 than is currently being applied to his sentence. Specifically, petitioner claims entitlement to: 25 1. 879 days additional sentence credit for time served prior to sentencing between July 26 10, 2017, and May 9, 2022 (claim 1). 27 2. 45 days additional sentence credit for time served in custody from sentencing through 28 arrival at a F.C.I. Terminal Island on August 9, 2022 (claim 2). 1 3. 24.5 days of additional sentence credit for time served between July 12 and August 30, 2 2023, while petitioner was “in transit” between F.C.I. Terminal Island, via F.C.I Victorville, and 3 F.C.I. Herlong, where petitioner currently resides (claim 3). 4 To be clear, petitioner does not assert he was denied credit for the actual days in custody 5 between the dates identified above. Rather, he asserts he is entitled to extra time credits under the 6 FSA. 7 II. Exhaustion of Administrative Remedies 8 Respondent argues that the petition should be dismissed for failure to exhaust 9 administrative remedies. A federal prisoner challenging any circumstance of imprisonment must 10 first exhaust all administrative remedies. E.g. Martinez v. Roberts,

(9th Cir. 11 1986). Martinez v. Roberts,

(9th Cir. 1986). The first step in the Federal 12 Bureau of Prisons’ (BOP) grievance process is a request for informal resolution.

542.13. When informal resolution procedures fail to achieve desired results, the BOP makes 14 available a formal three-level administrative remedy process: (1) a Request for Administrative 15 Remedy (“BP-9”) filed at the institution where the inmate is incarcerated; (2) a Regional 16 Administrative Remedy Appeal (“BP-10”) filed at the Regional Office for the geographic region 17 in which the inmate's institution is located; and (3) a Central Office Administrative Remedy 18 Appeal (“BP-11”) filed with the Office of General Counsel.

et seq. 19 The requirement that federal prisoners exhaust administrative remedies before filing a 20 habeas corpus petition was judicially created; it is not a statutory requirement. Brown v. Rison, 21

(9th Cir. 1990). Thus, “because exhaustion is not required by statute, it is not 22 jurisdictional.”

The exhaustion requirement can be waived if pursuing such remedies would 23 be futile. Fraley v. U.S. Bureau of Prisons,

(9th Cir. 1993). Conversely, the court 24 requires exhaustion if “(1) agency expertise makes agency consideration necessary to generate a 25 proper record and reach a proper decision; (2) relaxation of the requirement would encourage the 26 deliberate bypass of the administrative scheme; and (3) administrative review is likely to allow 27 the agency to correct its own mistakes and to preclude the need for judicial review.” United 28 States v. Cal. Care Corp.,

, 1248 (9th Cir. 1983). 1 III. Analysis 2 It is undisputed that petitioner did not exhaust administrative remedies with respect to the 3 claims currently before the court. Petitioner claims exhaustion is futile. Because the court finds 4 that petitioner fails to state a claim upon which habeas relief can be granted, the court need not 5 reach the question of whether exhaustion as to the present claims is futile. Petitioner will be 6 granted leave to file an amended petition. If petitioner has not utilized the administrative process 7 with the claims he wishes to present in his amended petition, he may seek voluntarily dismissal of 8 this action, utilize the administrative process, and then file a new petition if he is not satisfied 9 with the outcome of the process. If, however, petitioner believes that exhaustion is futile, he can 10 attempt to demonstrate that in his amended petition for the court’s consideration. 11 With respect to futility, the court notes that respondent argues that petitioner categorically 12 cannot earn FSA credit between the date he was sentenced and his arrival at F.C.I Terminal 13 Island, and while he was in transit between F.C.I. Terminal Island and F.C.I. Herlong. Recent 14 district court decisions, including at least five from courts within the Ninth Circuit have rejected 15 the first argument.1 At least one decision from this district has rejected the second argument.2 16 These decisions suggest that exhaustion of administrative remedies concerning claims akin to 17 claims 2 and 3 is not futile. 18 As to the petition pending before the court, claim 1 is frivolous as it is clear under federal 19 law that FSA credit cannot be earned pre-sentencing.

(d)(4)(B)(ii). With respect 20 to claims 2 and 3, petitioner is not entitled to relief because petitioner fails to point to his 21 participation in any evidence-based recidivism reduction programs (“EBRRs”) or productive 22 activities (“PAs”) during the periods of time identified. See

(d)(4). 23 ///// 24 1 Tantuwaya v. Birkholz, No. 2:24-cv-02891-DMG (MAR),

, at *2 (C.D. Cal. 25 Oct 10, 2024); Jobin v. Warden F.C.I. Mendota, No. 1:23-cv-01700 WBS SKO (HC),

, at *4 (E.D. Cal. April 1, 2024); Patel v. Barron, NO. C23-937-KKE,

6311281, at *5 (W.D. Wash. Sept. 5, 2023); Huihui v. Derr, No. 22-00541 JAO-RT,

4086073, at *5 (D. Haw. June 20, 2023).

28 2 Jackson v. Doerer, No. 5:24-01353-ADS,

, *8 (C.D. Cal. Nov. 7, 2024) ] If petitioner decides to file an amended petition, petitioner should consider omitting claim 2 || 1 as there does not appear to be any way petitioner can, in good faith, assert any basis for his 3 || earning FSA credit pre-sentencing. As for claims 2 and 3, petitioner must point to participation in 4 | EBBRs and / or PAs during the periods of time identified and specifically how, under law, he is 5 || entitled to more FSA credit than is being applied to his sentence due to participation. 6 Accordingly, IT IS HEREBY ORDERED that: 7 1. Petitioner’s motion for expedited action with respect to his petition for writ of habeas 8 || corpus (ECF No. 14) is DENIED as moot. 9 2. Respondent’s motion to dismiss for failure to exhaust administrative remedies (ECF 10 | No. 12) 1s DENIED. 11 3. Petitioner’s petition for a writ of habeas corpus (ECF No. 1) is dismissed. Petitioner is 12 || granted thirty days within which to file an amended petition. Failure to file an amended petition 13 || within 30 days will result in a recommendation that this action be dismissed. 14 4. Respondent need take no further action until directed by the court. Upon receipt of the 15 || amended petition, the court will conduct the preliminary review described in Rule 4 of the Rules 16 || Governing Section 2254 Cases.? 17 | Dated: March 12, 2025 / ae □□ / a Ly a 18 CAROLYN K DELANEY 19 UNITED STATES MAGISTRATE JUDGE 20 21 22 | 53 castl722.fsa(2) 24 25 26 Q_—_ xo dad > The court determines that Rule 4 preliminary review is applicable to this case pursuant to the 28 | court’s authority to so order granted in Rule 1(b) of the same rules.