UNITED STATES DISTRICT COURT                             
                   DISTRICT OF MINNESOTA                                

MARCO ANTONIO HERNANDEZ-           Case No. 24-CV-3617 (NEB/JFD)        
MEDINA,                                                                 

              Petitioner,                                               
                                REPORT AND RECOMMENDATION               
v.                                                                      

MARK KING, Warden,                                                      

              Respondent.                                               


   Under 

(d)(4)(E)(i), a federal prisoner is ineligible to apply time 
credits earned under the First Step Act of 2018 (“FSA”) “if the prisoner is the subject of a 
final order of removal . . . .” Petitioner Marco Antonio Hernandez-Medina is a federal 
prisoner. He has earned time credits under the FSA. The Federal Bureau of Prisons 
(“BOP”) informed Mr. Hernandez that he would not be permitted to apply those FSA time 
credits to his sentence because he is subject to a final order of removal. Mr. Hernandez 
filed a petition for a writ of habeas corpus alleging that he had not seen any final order of 
removal applying to him, that he did not believe he was subject to a final order of removal, 
and that the BOP should therefore apply to his sentence any time credits that he has earned 
under the FSA.                                                            
   Mr. Hernandez’s habeas petition therefore turned on a simple factual question: Was 
he subject to a final order of removal? If yes, then the BOP could not apply FSA time 
credits to Mr. Hernandez’s sentence. It would not matter if Mr. Hernandez believed he 
should not be subject to a final order of removal or wished to challenge the validity of that 
final order of removal; that substantive challenge to the removal would need to be directed 

elsewhere. See 

(g) (depriving federal district courts of jurisdiction over 
questions concerning the adjudication of a final order of removal). All that mattered was 
whether a final order of removal had been entered against Mr. Hernandez.  
   This Court could not answer that factual question from the record before it, and 
therefore the government was directed to supply the answer—and to do so immediately, 
because if Mr. Hernandez were not subject to a final order of removal, then he might have 

been entitled to immediate release from prison. See Dkt. No. 3. The government in response 
supplied to the Court a Notice and Order of Expedited Removal (“Removal Order”) dated 
February 5, 2024. See Declaration of Jaime Fogt Ex. 2 at 1-2 [Dkt. No. 8-2]. The Removal 
Order names Mr. Hernandez as the subject and identifies the circumstances of his arrest, 
as can be confirmed from a review of the plea agreement in Mr. Hernandez’s criminal case. 

See United States v. Hernandez-Medina, No. 3:22-CR-1755 (DMS), Dkt. No. 22 (“Plea 
Agreement”) (S.D. Cal. Sept. 8, 2022). The Removal Order also states that the document 
was  served  upon  Mr.  Hernandez  on  March 8,  2024,  though  in  the  space  where  Mr. 
Hernandez would have been asked to provide a signature acknowledging receipt, only the 
word “refused” is written. Removal Order at 1. Mr. Hernandez, for his part, does not deny 

that the Removal Order submitted by the government applies to him. Nor could the 
Removal Order have come as a shock to Mr. Hernandez, as his plea agreement stated that 
“defendant’s conviction in this case make[s] it practically inevitable and a virtual certainty 
that defendant will be removed or deported from the United States.” Plea Agreement at 5. 
   The key factual question in this matter therefore has been resolved: Mr. Hernandez 
is subject to a final order of removal. And with that factual issue resolved, the legal issue 

presented by Mr. Hernandez’s habeas petition is also resolved, because § 3632(d)(4)(E)(i) 
could not be clearer: “A prisoner is ineligible to apply time credits under [the FSA] if the 
prisoner is the subject of a final order of removal under any provision of the immigration 
laws . . . .”                                                             
   That would seem to be the end of the matter. But in his memorandum in reply to the 
government’s  evidentiary  submission,  Mr.  Hernandez  offers  a  new  argument.  The 

government, he argues, was required to conduct expedited removal proceedings “at a date 
as early as practicable during the prisoner’s incarceration.” 

(d)(4)(E)(ii). 
Mr. Hernandez was sentenced in January 2023. His removal proceedings concluded in 
February 2024, thirteen months later. This, argues Mr. Hernandez, was too long a wait—
and to make clear that the government should not  wait so long  to conduct removal 

proceedings in the future, continues Mr. Hernandez, the Court should order the BOP to 
apply to his sentence any FSA time credits that he has earned, even though the FSA forbids 
the BOP from applying those time credits to a person subject to a final order of removal. 
   This is not a convincing pivot. To begin with, it is far from obvious that the removal 
proceedings  were  not  conducted  “as  early  as  practicable”  during  Mr.  Hernandez’s 

incarceration. 

(d)(4)(E)(ii). This Court has no way of knowing what was 
“practicable” in Mr. Hernandez’s case. The timing of that hearing would necessarily have 
been affected by several factors, including the volume of hearings being conducted at that 
moment; the urgency of those hearings as compared to the urgency of Mr. Hernandez’s 
hearing; the need, if any, for further factual investigation; and so on. A delay of thirteen 
months is not so obviously lengthy that, taken alone, this Court could conclude that the 

government could “practicably” have acted sooner. 

 At a minimum, Mr. Hernandez has 
not established otherwise—and the burden of proof is on him, not the government, to 
establish that he is entitled to relief. See Whitaker v. Fisher, No. 10-CV-3595 (RHK/AJB), 

, at *3 (D. Minn. Mar. 28, 2011).                          
   There are three other problems with this new claim from Mr. Hernandez. First, it is 
a new claim—that is, the claim was not fairly raised within the habeas petition itself. Yes, 

Mr. Hernandez mentioned § 3632(d)(4)(e)(ii) in his petition. See Petition at 8. The entire 
thrust of Mr. Hernandez’s original claim, however, is that removal proceedings had not 
been conducted at all, either “as soon as practicable” or otherwise. As such, Mr. Hernandez 
requested as a remedy that the government either show that he was subject to a final order 
of removal or apply FSA time credits to this sentence—nothing else. See Petition at 11. 

Nowhere did Mr. Hernandez argue that even if he were subject to a final order of removal, 
the delay in conducting the removal proceedings results in his no longer being barred from 
applying FSA time credits. Understandably, then, the government did not address the 
argument in its response to the petition. Because the opposing party has not had an 
opportunity to respond, “federal courts do not, as a rule, entertain arguments made by a 

party for the first time in a reply brief.” Torspo Hockey Int’l, Inc. v. Kor Hockey Ltd., 

 (D. Minn. 2007).                                     
   Second, it is far from obvious that § 3632(d)(4)(E)(ii) provides an implied private 
right of action to litigants seeking to challenge the celerity with which removal proceedings 
were conducted. See Osher v. City of St. Louis, 

 (8th Cir. 2018) (noting 
that “nothing short of an unambiguously conferred right will support an implied right of 

action.”). Nothing about § 3632(d)(4)(E)(ii) suggests that Congress intended to permit 
litigants to seek relief under that provision,1 see Alexander v. Sandoval, 

, 286-
87  (2001),  and  the  vague  standard  provided  by  § 3632(d)(4)(E)(ii)—“as  soon  as 
practicable”—is not the kind of clear directive upon which an implied right of action will 
usually be founded. Unsurprisingly, then, the lone case that this Court has uncovered 
addressing the issue of whether § 3632(d)(4)(E)(ii) supplies  a private right of action 

determined that it does not. See Lange v. United States Attorney General, No. 5:23-3561 
(BHH/KDW),  

,  at *2  (D.S.C.  July 31,  2023),  Report  and 
Recommendation adopted by 

 (D.S.C. Jan. 12, 2024).          
   Third, even if the issue had been properly raised, and even if § 3632(d)(4)(E)(ii) did 
provide a private right of action, the remedy sought by Mr. Hernandez would be entirely 

inappropriate. The law could not be clearer that Mr. Hernandez is ineligible to have time 
credits applied to his sentence. See 

(d)(4)(E)(i). Petitioner is not asking 
that he be awarded something to which he is entitled; rather, he is asking that he be awarded 
something which he is expressly forbidden from receiving under the FSA. A federal court 
sitting in habeas corpus is required to “dispose of the matter as law and justice require,” 28 



1 That § 3632(d)(4)(E)(ii) states the government shall conduct the removal proceedings at 
a date as early as practicable is not material; many statutes exhort that the government shall 
do something without providing litigants with a private right of action through which to 
force the government to act. See GS Labs, Inc. v. Medica Insurance Co., No. 21-CV-2400 
(SRN/TNL), 

, at *6 (D. Minn. Sept. 20, 2022) (collecting cases).  
U.S.C. § 2243, and must fashion a remedy appropriate to the specific injury established by 
the petitioner, see Hilton v. Braunskill, 

 (1987). Mr. Hernandez is asking 

that the Court go beyond that role, subvert the plain text of the FSA, and permit him to 
leave prison sooner than the law requires. This would be a wholly improper remedy even 
if Mr. Hernandez’s claim were otherwise viable—which it is not.           
   Accordingly, it is recommended that Mr. Hernandez’s petition for a writ of habeas 
corpus be denied. Should the petition be denied, Mr. Hernandez’s pending application to 
proceed in forma pauperis may be denied as moot. See Kruger v. Erickson, 

, 

1074 n.3 (8th Cir. 1996) (per curiam).                                    
                     RECOMMENDATION                                     
   Based on the foregoing, and on all of the files, records, and proceedings herein, IT 
IS HEREBY RECOMMENDED THAT:                                               
   1.  The petition for a writ of habeas corpus of petitioner Marco Antonio Hernandez-

     Medina [Dkt. No. 1] be DENIED.                                     
   2.  This matter be DISMISSED.                                        
   3.  Mr. Hernandez’s application to proceed in forma pauperis [Dkt. No. 10] be 
     DENIED AS MOOT.                                                    

Dated: October 9, 2024          __/s/  John F. Docherty_______________  
                                JOHN F. DOCHERTY                        
                                United States Magistrate Judge          
                           NOTICE                                       

Filing Objections: This Report and Recommendation is not an order or judgment of the 
District Court and is therefore not appealable directly to the Eighth Circuit Court of 
Appeals.                                                                  

Under Local Rule 72.2(b)(1), “a party may file and serve specific written objections to a 
magistrate judge’s proposed finding and recommendations within 14 days after being 
served a copy” of the Report and Recommendation. A party may respond to those 
objections within 14 days after being served a copy of the objections. See Local 
Rule 72.2(b)(2). All objections and responses must comply with the word or line limits 
set forth in Local Rule 72.2(c).                                          

               UNITED STATES DISTRICT COURT                             
                   DISTRICT OF MINNESOTA                                

MARCO ANTONIO HERNANDEZ-           Case No. 24-CV-3617 (NEB/JFD)        
MEDINA,                                                                 

              Petitioner,                                               
                                REPORT AND RECOMMENDATION               
v.                                                                      

MARK KING, Warden,                                                      

              Respondent.                                               


   Under 

(d)(4)(E)(i), a federal prisoner is ineligible to apply time 
credits earned under the First Step Act of 2018 (“FSA”) “if the prisoner is the subject of a 
final order of removal . . . .” Petitioner Marco Antonio Hernandez-Medina is a federal 
prisoner. He has earned time credits under the FSA. The Federal Bureau of Prisons 
(“BOP”) informed Mr. Hernandez that he would not be permitted to apply those FSA time 
credits to his sentence because he is subject to a final order of removal. Mr. Hernandez 
filed a petition for a writ of habeas corpus alleging that he had not seen any final order of 
removal applying to him, that he did not believe he was subject to a final order of removal, 
and that the BOP should therefore apply to his sentence any time credits that he has earned 
under the FSA.                                                            
   Mr. Hernandez’s habeas petition therefore turned on a simple factual question: Was 
he subject to a final order of removal? If yes, then the BOP could not apply FSA time 
credits to Mr. Hernandez’s sentence. It would not matter if Mr. Hernandez believed he 
should not be subject to a final order of removal or wished to challenge the validity of that 
final order of removal; that substantive challenge to the removal would need to be directed 

elsewhere. See 

(g) (depriving federal district courts of jurisdiction over 
questions concerning the adjudication of a final order of removal). All that mattered was 
whether a final order of removal had been entered against Mr. Hernandez.  
   This Court could not answer that factual question from the record before it, and 
therefore the government was directed to supply the answer—and to do so immediately, 
because if Mr. Hernandez were not subject to a final order of removal, then he might have 

been entitled to immediate release from prison. See Dkt. No. 3. The government in response 
supplied to the Court a Notice and Order of Expedited Removal (“Removal Order”) dated 
February 5, 2024. See Declaration of Jaime Fogt Ex. 2 at 1-2 [Dkt. No. 8-2]. The Removal 
Order names Mr. Hernandez as the subject and identifies the circumstances of his arrest, 
as can be confirmed from a review of the plea agreement in Mr. Hernandez’s criminal case. 

See United States v. Hernandez-Medina, No. 3:22-CR-1755 (DMS), Dkt. No. 22 (“Plea 
Agreement”) (S.D. Cal. Sept. 8, 2022). The Removal Order also states that the document 
was  served  upon  Mr.  Hernandez  on  March 8,  2024,  though  in  the  space  where  Mr. 
Hernandez would have been asked to provide a signature acknowledging receipt, only the 
word “refused” is written. Removal Order at 1. Mr. Hernandez, for his part, does not deny 

that the Removal Order submitted by the government applies to him. Nor could the 
Removal Order have come as a shock to Mr. Hernandez, as his plea agreement stated that 
“defendant’s conviction in this case make[s] it practically inevitable and a virtual certainty 
that defendant will be removed or deported from the United States.” Plea Agreement at 5. 
   The key factual question in this matter therefore has been resolved: Mr. Hernandez 
is subject to a final order of removal. And with that factual issue resolved, the legal issue 

presented by Mr. Hernandez’s habeas petition is also resolved, because § 3632(d)(4)(E)(i) 
could not be clearer: “A prisoner is ineligible to apply time credits under [the FSA] if the 
prisoner is the subject of a final order of removal under any provision of the immigration 
laws . . . .”                                                             
   That would seem to be the end of the matter. But in his memorandum in reply to the 
government’s  evidentiary  submission,  Mr.  Hernandez  offers  a  new  argument.  The 

government, he argues, was required to conduct expedited removal proceedings “at a date 
as early as practicable during the prisoner’s incarceration.” 

(d)(4)(E)(ii). 
Mr. Hernandez was sentenced in January 2023. His removal proceedings concluded in 
February 2024, thirteen months later. This, argues Mr. Hernandez, was too long a wait—
and to make clear that the government should not  wait so long  to conduct removal 

proceedings in the future, continues Mr. Hernandez, the Court should order the BOP to 
apply to his sentence any FSA time credits that he has earned, even though the FSA forbids 
the BOP from applying those time credits to a person subject to a final order of removal. 
   This is not a convincing pivot. To begin with, it is far from obvious that the removal 
proceedings  were  not  conducted  “as  early  as  practicable”  during  Mr.  Hernandez’s 

incarceration. 

(d)(4)(E)(ii). This Court has no way of knowing what was 
“practicable” in Mr. Hernandez’s case. The timing of that hearing would necessarily have 
been affected by several factors, including the volume of hearings being conducted at that 
moment; the urgency of those hearings as compared to the urgency of Mr. Hernandez’s 
hearing; the need, if any, for further factual investigation; and so on. A delay of thirteen 
months is not so obviously lengthy that, taken alone, this Court could conclude that the 

government could “practicably” have acted sooner. 

 At a minimum, Mr. Hernandez has 
not established otherwise—and the burden of proof is on him, not the government, to 
establish that he is entitled to relief. See Whitaker v. Fisher, No. 10-CV-3595 (RHK/AJB), 

, at *3 (D. Minn. Mar. 28, 2011).                          
   There are three other problems with this new claim from Mr. Hernandez. First, it is 
a new claim—that is, the claim was not fairly raised within the habeas petition itself. Yes, 

Mr. Hernandez mentioned § 3632(d)(4)(e)(ii) in his petition. See Petition at 8. The entire 
thrust of Mr. Hernandez’s original claim, however, is that removal proceedings had not 
been conducted at all, either “as soon as practicable” or otherwise. As such, Mr. Hernandez 
requested as a remedy that the government either show that he was subject to a final order 
of removal or apply FSA time credits to this sentence—nothing else. See Petition at 11. 

Nowhere did Mr. Hernandez argue that even if he were subject to a final order of removal, 
the delay in conducting the removal proceedings results in his no longer being barred from 
applying FSA time credits. Understandably, then, the government did not address the 
argument in its response to the petition. Because the opposing party has not had an 
opportunity to respond, “federal courts do not, as a rule, entertain arguments made by a 

party for the first time in a reply brief.” Torspo Hockey Int’l, Inc. v. Kor Hockey Ltd., 

 (D. Minn. 2007).                                     
   Second, it is far from obvious that § 3632(d)(4)(E)(ii) provides an implied private 
right of action to litigants seeking to challenge the celerity with which removal proceedings 
were conducted. See Osher v. City of St. Louis, 

 (8th Cir. 2018) (noting 
that “nothing short of an unambiguously conferred right will support an implied right of 

action.”). Nothing about § 3632(d)(4)(E)(ii) suggests that Congress intended to permit 
litigants to seek relief under that provision,1 see Alexander v. Sandoval, 

, 286-
87  (2001),  and  the  vague  standard  provided  by  § 3632(d)(4)(E)(ii)—“as  soon  as 
practicable”—is not the kind of clear directive upon which an implied right of action will 
usually be founded. Unsurprisingly, then, the lone case that this Court has uncovered 
addressing the issue of whether § 3632(d)(4)(E)(ii) supplies  a private right of action 

determined that it does not. See Lange v. United States Attorney General, No. 5:23-3561 
(BHH/KDW),  

,  at *2  (D.S.C.  July 31,  2023),  Report  and 
Recommendation adopted by 

 (D.S.C. Jan. 12, 2024).          
   Third, even if the issue had been properly raised, and even if § 3632(d)(4)(E)(ii) did 
provide a private right of action, the remedy sought by Mr. Hernandez would be entirely 

inappropriate. The law could not be clearer that Mr. Hernandez is ineligible to have time 
credits applied to his sentence. See 

(d)(4)(E)(i). Petitioner is not asking 
that he be awarded something to which he is entitled; rather, he is asking that he be awarded 
something which he is expressly forbidden from receiving under the FSA. A federal court 
sitting in habeas corpus is required to “dispose of the matter as law and justice require,” 28 



1 That § 3632(d)(4)(E)(ii) states the government shall conduct the removal proceedings at 
a date as early as practicable is not material; many statutes exhort that the government shall 
do something without providing litigants with a private right of action through which to 
force the government to act. See GS Labs, Inc. v. Medica Insurance Co., No. 21-CV-2400 
(SRN/TNL), 

, at *6 (D. Minn. Sept. 20, 2022) (collecting cases).  
U.S.C. § 2243, and must fashion a remedy appropriate to the specific injury established by 
the petitioner, see Hilton v. Braunskill, 

 (1987). Mr. Hernandez is asking 

that the Court go beyond that role, subvert the plain text of the FSA, and permit him to 
leave prison sooner than the law requires. This would be a wholly improper remedy even 
if Mr. Hernandez’s claim were otherwise viable—which it is not.           
   Accordingly, it is recommended that Mr. Hernandez’s petition for a writ of habeas 
corpus be denied. Should the petition be denied, Mr. Hernandez’s pending application to 
proceed in forma pauperis may be denied as moot. See Kruger v. Erickson, 

, 

1074 n.3 (8th Cir. 1996) (per curiam).                                    
                     RECOMMENDATION                                     
   Based on the foregoing, and on all of the files, records, and proceedings herein, IT 
IS HEREBY RECOMMENDED THAT:                                               
   1.  The petition for a writ of habeas corpus of petitioner Marco Antonio Hernandez-

     Medina [Dkt. No. 1] be DENIED.                                     
   2.  This matter be DISMISSED.                                        
   3.  Mr. Hernandez’s application to proceed in forma pauperis [Dkt. No. 10] be 
     DENIED AS MOOT.                                                    

Dated: October 9, 2024          __/s/  John F. Docherty_______________  
                                JOHN F. DOCHERTY                        
                                United States Magistrate Judge          
                           NOTICE                                       

Filing Objections: This Report and Recommendation is not an order or judgment of the 
District Court and is therefore not appealable directly to the Eighth Circuit Court of 
Appeals.                                                                  

Under Local Rule 72.2(b)(1), “a party may file and serve specific written objections to a 
magistrate judge’s proposed finding and recommendations within 14 days after being 
served a copy” of the Report and Recommendation. A party may respond to those 
objections within 14 days after being served a copy of the objections. See Local 
Rule 72.2(b)(2). All objections and responses must comply with the word or line limits 
set forth in Local Rule 72.2(c).