2:25-cv-01471•Junker v. Bondi et al
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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 WO IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Joshua Junker, Petitioner, v. Pamela Bondi, et al., Respondents. No. CV-25-01471-PHX-DLR (DMF) REPORT AND RECOMMENDATION TO THE HONORABLE DOUGLAS L. RAYES, SENIOR UNITED STATES DISTRICT JUDGE: I. PROCEDURAL POSTURE This matter is on referral to the undersigned for further proceedings and a report and recommendation pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure (Doc. 6 at 4).1 Self-represented Petitioner Joshua Junker (“Petitioner” and/or “Junker”) filed a Petition for a Writ of Habeas Corpus Under 28 U.S.C. § 2241 (Doc. 1) and a Memorandum in Support (Doc. 2) (together, “Petition”). At the time he initiated this matter, Petitioner was confined in the Federal Correctional Institution-Phoenix (“FCI-Phoenix”) (Docs. 1, 2). On September 4, 2025, the Court required Respondent Jason Gunther (“Respondent” 1 Citation to the record as “Doc.” indicates documents as displayed in the official Court electronic document filing system maintained by the District of Arizona under case number CV-25-01471-PHX-DLR (DMF). Case 2:25-cv-01471-DLR Document 17 Filed 02/13/26 Page 1 of 10
- 2 - 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 and/or “Gunther”) to answer to the Petition and dismissed the remaining Respondents as redundant (Doc. 6). On September 26, 2025, Respondent Gunther filed a Return and Answer to Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2241 (“Answer”) (Doc. 12), including the Declaration of United States Department of Justice, Federal Bureau of Prisons, Legal Assistant at FCI-Phoenix Shaleen Ruelas (“Ruelas Decl.”) with supporting documents (Doc. 12-1; see also Docs. 15, 16). During these proceedings, Petitioner filed a change of address reflecting his transfer out of the District of Arizona (Doc. 14). Nevertheless, Petitioner has not filed a reply in support of the Petition and the time to do so has expired (see Doc. 6 at 3; Docs. 15, 16). Upon careful review, it is recommended that the Petition be dismissed without prejudice and this matter terminated. II. CLAIMS AND DEFENSES In a September 4, 2025, Order, the Court construed the Petition as raising three grounds for relief in the Petition: (1) the “System” developed by the Federal Bureau of Prisons (BOP) pursuant to 18 U.S.C. §§ 3631 and 3621 for “[First Step Act] risk and needs assessment does not comply with the requirements of the statute because it uses static factors that either will never change or are not likely to change during a term of imprisonment.” (2) BOP “does not offer sufficient programming to meaningfully reduce an inmate[’]s risk of recidivism by assigning each inmate to appropriate evidence-based recidivism reduction programs which address specific criminogenic needs” and FCI-Phoenix does not offer any courses that reduce Petitioner’s “risk points.” (3) “All prisoners at each risk level do not have a meaningful opportunity to reduce their classification during their period of incarceration[,] in accordance with 18 USC § 3632(a)(5)(A).” (Doc. 6 at 1-2). The Court required Respondent Gunther to answer the Petition, and the Court dismissed the remaining Respondents as redundant (Id. at 3). In his September 2025 Answer, Respondent requests that the Court dismiss the Case 2:25-cv-01471-DLR Document 17 Filed 02/13/26 Page 2 of 10
- 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 Petition or, alternatively, deny the Petition (Doc. 12). Respondent argues that this matter should be dismissed and/or denied because Petitioner failed to exhaust administrative remedies, because this Court lacks jurisdiction under the Administrative Procedures Act, because this Court cannot compel discretionary agency action, Petitioner does not have a liberty interest in his “Prisoner Assessment Tool Targeting Estimated Risk and Needs” (or “PATTERN”) score regarding recidivism risk or in the application of First Step Act (“FSA”) earned time credits (“ETCs”) toward early release or prerelease custody, and because Petitioner’s sentence is properly calculated (Id.). Respondent describes Petitioner as follows, with references in support from the Ruelas Decl.: Petitioner is serving a 120-month term of imprisonment for a drug distribution offense in violation of federal law. [Doc. 12-1] at ¶ 15. Petitioner is projected for release from Bureau custody on November 24, 2026. Id. Petitioner’s eligibility for FSA ETCs was reviewed on January 13, 2020, and he was deemed eligible to earn FSA time credits. Id. at ¶ 16. During his most recent Program Review on June 18, 2025, he was determined to be a high risk for recidivism. Id. Because of Petitioner’s high risk for recidivism, he is not eligible to have any ETCs applied toward prerelease custody or his supervised release term. Id. at ¶ 17. His recidivism risk level will be re- assessed again in December 2025. Id. at ¶ 18. (Doc. 12 at 3). Petitioner was sentenced to the 120-month term of imprisonment on June 28, 2018, in the Western District of Texas (Doc. 12-1 at 8, ¶ 15; Doc. 12-1 at 15). During these proceedings either before the Answer’s filing or shortly thereafter, Petitioner was transferred to a facility outside the District of Arizona (Docs. 12, 13, 14). The Answer was properly mailed to Petitioner (Docs. 14, 15, 16). Nevertheless, Petitioner has not filed a reply and the time to do so has expired (Id.). III. PROPER DISTRICT Because Petitioner was confined in the District of Arizona when he filed the Petition, this habeas matter was properly brought in this district. See Brown v. United States, 610 F.2d 672, 677 (9th Cir. 1990) (§ 2241 petition must be brought in the district Case 2:25-cv-01471-DLR Document 17 Filed 02/13/26 Page 3 of 10
- 4 - 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 of confinement). This Court may continue to exercise jurisdiction, notwithstanding Petitioner’s transfer outside of this District. See Johnson v. Gill, 883 F.3d 756, 761 (9th Cir. 2018); see also Francis v. Rison, 894 F.2d 353, 354 (9th Cir. 1990) (“[J]urisdiction attaches on the initial filing for habeas corpus relief, and it is not destroyed by a transfer of the petitioner and the accompanying custodial change.” (quoting Santillanes v. U.S. Parole Comm’n, 754 F.2d 887, 888 (10th Cir. 1985))). IV. FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES Petitioner admits that he did not pursue his administrative remedies regarding his claims and requests in the Petition because Petitioner asserts that the administrative remedy process in place at the Federal Bureau of Prisons (“BOP” or “FBOP” or “Bureau”) would be futile (Doc. 1 at 2). Petitioner further asserts that “[i]n researching the caselaw regarding FSA and it’s applicability it is quite clear that the FBOP obstinately refuses to comply with ANY part of the statute without being expressly compelled by a court to do so” (Doc. 2 at 8). Respondent avers that “BOP operates the Administrative Remedy Program, which is designed to allow an inmate to seek formal review of an issue relating to any aspect of his or her confinement, including earned time credits (“ETCs”). 28 C.F.R. §§ 542.10 & 542.14(d)(2)” (Doc. 12 at 2-3). Respondent explains that “[t]he Administrative Remedy Program consists of four levels of review, ordinarily commencing with an attempt at informal resolution (BP-8), a request to the Warden (BP-9), and then appeals to the Regional Director (BP-10) and the Office of General Counsel (BP-11)” (Id. at 3). Respondent further details the BOP administrative remedy procedures (Doc. 12-1 at 5-7, ¶¶ 3-9). Respondent reports that while in BOP custody, Petitioner has filed seven administrative remedies/appeals, which all related to disciplinary matters (Id. at 7-8, ¶¶ 12, 13). Respondent reports that Petitioner has not exercised his administrative remedies regarding the Petition claims (Id. at 7-8, ¶¶ 10-14). Respondent argues: Case 2:25-cv-01471-DLR Document 17 Filed 02/13/26 Page 4 of 10
- 5 - 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 As a prudential matter, courts require a habeas petitioner to exhaust available administrative remedies before he files a petition for relief under 28 U.S.C. § 2241. See, e.g., Huang v. Ashcroft, 390 F.3d 1118, 1123 (9th Cir. 2004); Tucker v. Carlson, 925 F.2d 330, 332 (9th Cir. 1991); Ruviwat v. Smith, 701 F.2d 844, 845 (9th Cir. 1983). Administrative exhaustion protects an agency’s authority, allows it to apply its expertise, and permits it to correct its own errors. See Woodford v. Ngo, 548 U.S. 81, 89 (2006). Administrative exhaustion also promotes efficiency by permitting matters to be handled administratively, where a resolution often can be reached more quickly than in the courts, id., and promotes judicial economy by facilitating the “preparation of a useful record,” Jones v. Bock, 549 U.S. 199, 219 (2007). A federal prisoner in Bureau custody exhausts his administrative remedies through the Bureau’s Administrative Remedy Program. Martinez v. Roberts, 804 F.2d 570, 571 (9th Cir. 1986); Fraley v. U.S. Bureau of Prisons, 1 F.3d 924, 925 (9th Cir. 1993). The Bureau’s Administrative Remedy Program is designed to allow an inmate to seek formal review of an issue relating to any aspect of his or her confinement. 28 C.F.R. § 542.10; see also Ex. A at ¶¶ 3- 9 (summary of Administrative Remedy Program). An inmate exhausts his administrative remedies by pursuing his claim in the Bureau’s four-tier process as set forth at 28 C.F.R. §§ 542.10-542.19. In the Petition, Petitioner concedes that he did not exhaust his administrative remedies. Doc. 1 at 2 (Q7: “Did you appeal the decision, file a grievance, or seek an administrative remedy?” A: “No.”). He argues that “[p]ursuing administrative remedies would be futile because it would not result in [the Bureau] changing their policy.” Id. at 2-3 (“No remedy is available, futile to pursue.”). The Supreme Court has held that technical compliance with all administrative requirements for exhaustion is mandatory, and that an inmate must properly exhaust by complying with the agency’s deadlines and procedural rules. See Woodford, 548 U.S. at 90-92 (“Proper exhaustion demands compliance with an agency’s deadlines and other critical procedural rules because no adjudicative system can function effectively without imposing some orderly structure on the course of its proceedings.”); Fordley v. Lizarraga, 18 F.4th 344, 351 (9th Cir. 2021) (“To exhaust administrative remedies, inmates must comply with the prison’s ‘deadlines and other critical procedural rules.’” (quoting Woodford, 548 U.S. at 90)); Derello v. Stickley, No. 631 F. Supp. 3d 758, 770 (D. Ariz. 2022) (“The prisoner must complete the administrative review process in accordance with the applicable rules.” (citing Woodford, 548 U.S. at 92)). Case 2:25-cv-01471-DLR Document 17 Filed 02/13/26 Page 5 of 10
- 6 - 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 The Bureau has not received any administrative remedy requests from Petitioner during his incarceration on any subject matter in the Petition, see Ex. A at ¶¶ 11-14, and Petitioner admits he has not filed any, Doc. 1 at 2-3, 5. Therefore, Petitioner has failed to properly exhaust his administrative remedies regarding his ETCs and sentence computation. The Petition should be dismissed for this reason alone. (Doc. 12 at 7-8). Upon review, the Court agrees with Respondent that the Petition should be dismissed for Petitioner’s failure to exhaust. By his own admission, Petitioner did not even attempt to exhaust his administrative remedies regarding the Petition claims. As a general matter, an inmate must exhaust his administrative remedies before filing a lawsuit. Ward v. Chavez, 678 F.3d 1042, 1045 (9th Cir. 2012). It is true that administrative exhaustion is not statutorily required by 28 U.S.C. § 2241. Laing v. Ashcroft, 370 F.3d 994, 997 (9th Cir. 2004). However, courts generally require that administrative remedies be exhausted before Section 2241 habeas proceedings because it is usually more efficient for the administrative process to go forward without interruption than to permit parties to seek aid from the courts at various intermediate stages. Id.; see also McKart v. United States, 395 U.S. 185, 194 (1969). As explained by the Ninth Circuit in Laing: Under the doctrine of exhaustion, “no one is entitled to judicial relief for a supposed or threatened injury until the prescribed . . . remedy has been exhausted.” McKart v. United States, 395 U.S. 185, 193, 89 S.Ct. 1657, 23 L.Ed.2d 194 (1969) (citation and internal quotation marks omitted). Exhaustion can be either statutorily or judicially required. If exhaustion is required by statute, it may be mandatory and jurisdictional, but courts have discretion to waive a prudential requirement. El Rescate Legal Servs., Inc. v. Executive Office of Immigration Review, 959 F.2d 742, 746 (9th Cir.1991); Stratman v. Watt, 656 F.2d 1321, 1325–26 (9th Cir.1981). Laing, 370 F.3d at 997-98. Courts may require prudential exhaustion if “(1) agency expertise makes agency consideration necessary to generate a proper record and reach a proper decision; (2) Case 2:25-cv-01471-DLR Document 17 Filed 02/13/26 Page 6 of 10
- 7 - 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 relaxation of the requirement would encourage the deliberate bypass of the administrative scheme; and (3) administrative review is likely to allow the agency to correct its own mistakes and to preclude the need for judicial review.” Noriega-Lopez v. Ashcroft, 335 F.3d 874, 881 (9th Cir. 2003) (quoting Montes v. Thornburgh, 919 F.2d 531, 537 (9th Cir. 1990)). Even when exhaustion is prudential and courts have discretion to waive the exhaustion requirement, a key consideration in exercising this discretion is whether waiving the exhaustion requirement encourages the inmate to bypass the administrative scheme. Laing, 370 F.3d at 1000; Montes, 919 F.2d at 537. When a petitioner does not exhaust administrative remedies and administrative remedies remain available, “a district court ordinarily should either dismiss the petition without prejudice or stay the proceedings until the petitioner has exhausted remedies, unless exhaustion is excused.” Leonardo v. Crawford, 646 F.3d 1157, 1160 (9th Cir. 2011) (citations omitted). Exhaustion may be excused if pursuing an administrative remedy would be futile. Fraley v. U.S. Bureau of Prisons, 1 F.3d 924, 925 (9th Cir. 1993) (per curiam). Here, Petitioner’s futility arguments are conclusory and unpersuasive, particularly given that Petitioner did not make any attempt to engage in BOP’s administrative remedy process about the Petition claims at any of the levels of the administrative remedy process. Indeed, while in BOP custody, Petitioner has filed seven administrative remedies/appeals pertaining to disciplinary matters (Doc. 12-1 at 7, ¶¶ 12-13; see id. at 18-22). Further, BOP’s administrative remedy process does not appear futile based on the record before the Court, particularly in light of amendments to BOP’s FSA earned time credits implementation program statement in the period since the program statement’s promulgation (see Doc. 12-1 at 27-50). Moreover, it is more efficient to allow opportunity for the BOP to correct any errors through the multilevel administrative remedy process it has established. Importantly, the Court would benefit from a well-developed agency record made during the administrative remedy process regarding factual matters and reasoning supporting Petitioner’s and Respondent’s positions. Furthermore, allowing Petitioner to Case 2:25-cv-01471-DLR Document 17 Filed 02/13/26 Page 7 of 10
- 8 - 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 raise the Petition’s issues and claims with the Court before properly following and completing the BOP administrative remedy process would encourage Petitioner and other inmates to deliberately bypass some or all of the BOP administrative remedy process regarding FSA earned time credits. Indeed, there have been numerous other section 2241 habeas proceedings regarding FSA ETCs recently filed in this District wherein the petitioner did not attempt to exhaust BOP administrative remedies; many of them are remarkably similar to each other and were later resolved against the petitioners.2 On this record, where Petitioner has previously pursued for other matters the very process that he now alleges is futile, this Court does not have a basis to conclude that the administrative remedy process is futile. Further, as a matter of efficiency and judicial economy, Petitioner should have afforded the BOP the opportunity to correct any errors through its well-established administrative remedy process rather than Petitioner ignoring that process. See Mejia v. Hudson, No. CV-24-00306-TUC-JCH (JR), 2024 WL 5078007, at *5-6 (D. Ariz. Nov. 8, 2024) (recommending dismissal for failure to exhaust administrative remedies where petitioner alleged the BOP improperly calculated his FSA time credits), report and recommendation adopted, 2024 WL 5077214 (D. Ariz. Dec. 11, 2024); see also Watts v. Gunther, No. CV-24-03135-PHX-JAT (DMF), 2025 WL 756514 (D. Ariz. Jan. 28, 2025), report and recommendation adopted, 2025 WL 755506 (D. Ariz. Mar. 10 2025); Collier v. Gunther, No. CV-24-2365-PHX-JJT (DMF), 2025 WL 1520590 2 See, e.g., Petition for Writ of Habeas Corpus, Wilborn v. Gunther, No. CV-24-02062- PHX-SRB (MTM) (D. Ariz. Aug. 14, 2024), ECF No. 1; Petition for Writ of Habeas Corpus, Palermi v. Gunther, No. CV-24-02195-PHX-KML (MTM) (D. Ariz. Aug. 26, 2024), ECF No. 1; Petition for Writ of Habeas Corpus, Love v. Gunther, No. CV-24-02355- PHX-GMS (DMF) (D. Ariz. Sept. 6, 2024), ECF No. 1; Petition for Writ of Habeas Corpus, McLeighey v. Gunther, No. CV-24-02364-PHX-JJT (DMF) (D. Ariz. Sept. 9, 2024), ECF No. 1; Petition for Writ of Habeas Corpus, Sanchez v. Gunther, CV-24-02363-PHX-ROS (ESW) (D. Ariz. Sept. 9, 2024), ECF No. 1; Petition for Writ of Habeas Corpus, Velasquez v. Gunther, CV-24-02446-PHX-JAT (ASB) (D. Ariz. Sept. 16, 2024), ECF No. 1; Petition for Writ of Habeas Corpus, Calvillo v. Gunther, No. CV-24-02578-PHX-DJH (MTM) (D. Ariz. Sept. 26, 2024), ECF No. 1; Petition for Writ of Habeas Corpus, Farris v. Gunther, No. CV-24-02836-PHX-GMS (DMF) (D. Ariz. Oct. 21, 2024), ECF No. 1; Petition for Writ of Habeas Corpus, Mendez v. Gunther, No. CV-24-03050-PHX-SHD (ASB) (D. Ariz. Nov. 4, 2024), ECF. No. 1. Importantly, this is far from an exhaustive list for even 2024 and numerous similar habeas matters were filed in 2025. Case 2:25-cv-01471-DLR Document 17 Filed 02/13/26 Page 8 of 10
- 9 - 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 (D. Ariz. Mar. 31, 2025), report and recommendation adopted, 2025 WL 1519188 (D. Ariz. May 28, 2025). Thus, it is recommended that Petitioner’s failure to exhaust administrative remedies warrants dismissal of the Petition without prejudice and termination of this matter. V. CONLUSION For the reasons above, it is recommended that the Petition be dismissed without prejudice and this matter terminated. Because the recommended dismissal is based on the failure to exhaust administrative remedies, the Court does not reach the remainder of the defenses raised by Respondent. Accordingly, IT IS RECOMMENDED that the Petition (Docs. 1, 2) be dismissed without prejudice and this matter terminated. This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1) of the Federal Rules of Appellate Procedure should not be filed until entry of the District Court’s judgment. The parties shall have fourteen days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6, 72. The parties shall have fourteen days within which to file responses to any objections. Failure to file timely objections to the Magistrate Judge’s Report and Recommendation may result in the acceptance of the Report and Recommendation by the District Court without further review. See United States v. Reyna- Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure to file timely objections to any factual determination of the Magistrate Judge may be considered a waiver of a party’s right to appellate review of the findings of fact in an order or judgment entered pursuant to the Magistrate Judge’s recommendation. See Fed. R. Civ. P. 72. In addition, LRCiv 7.2(e)(3) /// /// /// Case 2:25-cv-01471-DLR Document 17 Filed 02/13/26 Page 9 of 10
- 10 - 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 provides that “[u]nless otherwise permitted by the Court, an objection to a Report and Recommendation issued by a Magistrate Judge shall not exceed ten (10) pages.” Dated this 13th day of February, 2026. Case 2:25-cv-01471-DLR Document 17 Filed 02/13/26 Page 10 of 10
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