(HC) Hand v. FCI Herlong, No. 2:2020cv02320 - Document 19 (E.D. Cal. 2021)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Jeremy D. Peterson on 2/22/2021 RECOMMENDING 10 Motion to Dismiss be granted and the petition be dismissed without prejudice and 7 Motion for Preliminary Injunction be denied as moot. Referred to Judge John A. Mendez. Objections due within 14 days of the service of the findings and recommendations. (Henshaw, R)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 JEHU HAND, 11 Petitioner, 12 13 Case No. 2:20-cv-02320-JAM-JDP (HC) v. WARDEN OF FCI HERLONG, FINDINGS AND RECOMMENDATIONS THAT: (1) RESPONDENT’S MOTION TO DISMISS BE GRANTED 15 (2) PETITIONER’S MOTION FOR PRELIMINARY INJUNCTION BE DENIED AS MOOT 16 OBJECTIONS DUE IN FOURTEEN DAYS 17 ECF Nos. 7 & 10 14 Respondent. 18 19 Petitioner Jehu Hand, a federal prisoner without counsel, petitions for a writ of habeas 20 corpus under 28 U.S.C. § 2241. ECF No. 1. He argues that he is entitled to release under the 21 First Step Act of 2018 (“FSA”). Id. at 5-6. Respondent has filed a motion to dismiss, ECF No. 22 10, and petitioner has filed an opposition, ECF No. 18. Respondent has not filed a reply and the 23 time to do so has passed. For the reasons below, I recommend that respondent’s motion be 24 granted. 25 26 27 28 1 1 In addition, petitioner seeks a preliminary injunction, though he concedes that his motion 2 for preliminary injunction, ECF No. 7, has been mooted by his release under the Coronavirus Aid, 3 Relief, and Economic Security Act—known as the CARES Act. ECF No. 18 at 1, 4. I will 4 recommend that the motion be denied as moot 5 No habeas rule specifically applies to motions to dismiss. See Hillery v. Pulley, 533 F. 6 Supp. 1189, 1194 (E.D. Cal. 1982) (“Motion practice in habeas corpus is not specifically 7 provided for in the rules but must be inferred from their structure and the Advisory Committee 8 Notes.”). Following an approach taken by other courts in this district, I apply Rule 4 of the Rules 9 Governing Section 2254 Cases to this motion to dismiss. See, e.g., Ram v. Sacramento Cty., No. 10 2:15-cv-2074-WBS-DB, 2017 U.S. Dist. LEXIS 85123 at *4 (E.D. Cal. 2017). Under Rule 4, I 11 evaluate whether it “plainly appears” that the petitioner is not entitled to relief and, if so, 12 recommend dismissal of the petition. 13 As stated above, petitioner argues that he is entitled to early release credits under the FSA. 14 This is not his first section 2241 petition addressing the matter. In March 2020, Magistrate Judge 15 Boone recommended dismissal of a similar petition after finding that petitioner’s claims were not 16 ripe. Hand v. Merlak, No. 1:19-cv-01144-SAB, 2020 U.S. Dist. LEXIS 104271, *8 (E.D. Cal. 17 2020).1 As in the case before Judge Boone, petitioner seeks release under the FSA’s Elderly 18 Offender Home Detention Program (“EOHD”). ECF No. 1 at 6. The FSA directs the Attorney 19 General to conduct a pilot program that weighs the effectiveness of allowing eligible elderly 20 offenders to serve a portion of their sentences in home detention. 34 U.S.C. § 60541(g)(1)(A). 21 Only elderly offenders that have served two thirds of their sentence are eligible for the EOHD. 22 34 U.S.C. § 60541(g)(5)(A)(ii). Judge Boone noted, as respondent does in the motion at bar, that 23 petitioner will not have served two-thirds of his sentence until 2022. Hand, 2020 U.S. Dist. 24 LEXIS 104271, *8; ECF No. 10 at 3. Petitioner has not offered any cognizable argument that he 25 has already completed more than two-thirds of his sentence. Regarding ripeness, petitioner 26 27 28 Judge Boone’s recommendations were adopted by District Judge Dale A. Drozd in June 2020. Hand v. Merlak, 1:19-cv-01144-DAD-SAB, 2020 U.S. Dist. LEXIS 104270 (E.D. Cal. 2020). Petitioner appealed, but voluntarily dismissed that appeal before the Ninth Circuit ruled on its merits. Hand v. Merlak, 2021 U.S. App. LEXIS 2483 (9th Cir. Cal., Jan. 28, 2021). 2 1 1 argues only that “an incarcerated person challenging his confinement has prima facie standing 2 and a ripe claim.” ECF No. 18 at 6. 3 I find that petitioner lacks standing and that his claim is not ripe. Petitioner will not be 4 eligible for the EOHD until 2022. He has no legally protected interest in being released under the 5 program until he meets its eligibility requirements. See Lujan v. Defenders of Wildlife, 504 U.S. 6 555, 560 (1992) (to have standing a plaintiff must have suffered the “invasion of a legally 7 protected interest . . .”). His claim will be ripe only if he becomes eligible for the EOHD and 8 respondent issues an adverse decision. See Texas v. United States, 523 U.S. 296, 300 (1998) (“A 9 claim is not ripe for adjudication if it rests upon contingent future events that may not occur as 10 anticipated, or indeed may not occur at all.”) (internal quotation marks and citations omitted). I 11 need not consider respondent’s other arguments in favor of dismissal. 12 For the foregoing reasons, I recommend that: 13 1. 14 respondent’s motion to dismiss (ECF No. 10) be granted and that the petition be dismissed without prejudice; petitioner’s motion for preliminary injunction (ECF No. 7) be denied as moot. 15 2. 16 These findings and recommendations are submitted to the U.S. district judge presiding 17 over the case under 28 U.S.C. § 636(b)(1)(B) and Local Rule 304. Within fourteen days of the 18 service of the findings and recommendations, the parties may file written objections to the 19 findings and recommendations with the court and serve a copy on all parties. That document 20 must be captioned “Objections to Magistrate Judge’s Findings and Recommendations.” The 21 presiding district judge will then review the findings and recommendations under 28 U.S.C. 22 § 636(b)(1)(C). 23 24 IT IS SO ORDERED. 25 Dated: 26 27 February 22, 2021 JEREMY D. PETERSON UNITED STATES MAGISTRATE JUDGE 28 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4

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