Torres v. Yankton FPC, Warden

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
GERARDO AGUILAR TORRES,
Petitioner,
vs.
YANKTON FPC, WARDEN,
Respondent.
4:21-CV-04055-KES
ORDER GRANTING RESPONDENT’S
MOTION TO DISMISS AND
REJECTING THE MAGISTRATE
JUDGE’S REPORT AND
RECOMMENDATION
Petitioner, Gerardo Aguilar Torres, brings this pro se petition for writ of
habeas corpus under 28 U.S.C. § 2241. Docket 1. Torres seeks immediate
application of his earned time credits under 18 U.S.C. § 3621(h)(4). See id. at 6,
8. The petition was assigned to a United States Magistrate Judge under 28
U.S.C. § 636(b)(1)(B), and this court’s October 16, 2014, standing order.
Respondent now moves to dismiss Torres’s petition for failure to exhaust
administrative remedies, for lack of subject-matter jurisdiction, and for failure
to state a claim. Docket 13. The Magistrate Judge entered a report and
recommendation recommending Torres’s petition be dismissed without
prejudice for lack of subject-matter jurisdiction. Docket 21 at 7. Torres did not
file objections to the Magistrate Judge’s report and recommendation. After de
novo review of the record, this court rejects the Magistrate Judge’s report and
recommendation and grants respondent’s motion to dismiss on other ripeness
grounds.
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STANDARD OF REVIEW
The court’s review of the Magistrate Judge’s report and recommendation
is governed by 28 U.S.C. § 636 and Rule 72 of the Federal Rules of Civil
Procedure. The court reviews de novo any objections to a magistrate judge’s
recommendations with respect to dispositive matters that are timely made and
specific. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). In conducting its de novo
review, this court may then “accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge.” 28 U.S.C.
§ 636(b)(1); United States v. Craft, 30 F.3d 1044, 1045 (8th Cir. 1994).
DISCUSSION
Respondent states that Torres has a projected release date of September
2, 2022, via a good conduct time release. Docket 14 at 2. In his initial petition,
Torres did not indicate how many First Step Act (the “Act”) time credits he
believed he had earned, but he did state that he was due immediate release.
Docket 1 at 2. In his response to respondent’s motion to dismiss, he claims
that he has now earned a total of 10.5 months of time credits through
participation in evidence-based recidivism reduction programming and
productive activities. Docket 18 at 1. Respondent states that Torres has
completed 500 hours, or 62.5 days, of programming and activities. Docket 14
at 27.
In her report and recommendation, the Magistrate Judge found that the
court lacks subject-matter jurisdiction over Torres’s petition because the BOP
has no duty under the Act to apply Torres’s time credits until January 15,
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2022. Docket 21 at 4-7. Before discussing that issue, however, the court must
determine if it has jurisdiction under Article III of the United States
Constitution.
Article III of the United States Constitution limits the jurisdiction of
federal courts to “actual, ongoing cases or controversies.” Lewis v. Cont’l Bank
Corp., 494 U.S. 472, 477 (1990). Two components of the Article III case-or-
controversy requirement are the “closely related” concepts of standing and
ripeness. Bova v. City of Medford, 564 F.3d 1093, 1096 (9th Cir. 2009) (citation
omitted). The ripeness inquiry in some cases may therefore “be characterized
as standing on a timeline.” Thomas v. Anchorage Equal Rts. Comm’n, 220 F.3d
1134, 1138 (9th Cir. 2000) (en banc). Whether a claim is ripe depends on “the
fitness of the issues for judicial decision and the hardship to the parties of
withholding court consideration.” Abbott Lab’ys v. Gardner, 387 U.S. 136, 149
(1967), abrogated on other grounds by Califano v. Sanders, 430 U.S. 99 (1977)).
Rulemaking decisions by respondent are subject to judicial review, but
adjudicative decisions in a specific case are not subject to judicial review. See
18 U.S.C. § 3625; see also Martin v. Gerlinski, 133 F.3d 1076, 1079 (8th Cir.
1998) (“[I]t is apparent that § 3625 precludes judicial review of agency
adjudicative decisions but not of rulemaking decisions.”). Here, Torres has
raised several challenges to the BOP’s rulemaking decisions in his response to
respondent’s motion to dismiss. See Docket 18 at 2. But he did not raise those
challenges in his initial petition, and he did not preserve those challenges by
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objecting to the Magistrate Judge’s failure to include them in her report and
recommendation. Thus, these challenges are not before the court.
Torres is the proper party to bring this claim. But there is not at this
time and might never be a time when Torres has a valid claim that he will lose
days of time credits to which he is entitled under the Act. Because there is
adequate time for the application of the earned time credits after the latest date
for implementation of the Act on January 15, 2022, but well in advance of
Torres’s projected release date of September 2, 2022, this claim is not ripe for
adjudication and is dismissed without prejudice to the bringing of a claim
when ripe, if that ever happens.
CONCLUSION
Because Torres’s claim is not ripe, the court does not have jurisdiction
under Article III of the United States Constitution to hear this claim. The court
rejects the Magistrate Judge’s report and recommendation dismissing this
matter for lack of subject-matter jurisdiction on other ripeness grounds and
dismisses Torres’s petition.
Thus, it is ORDERED:
1. 	That respondent’s motion to dismiss (Docket 13) is granted. Torres’s
petition for writ of habeas corpus under 28 U.S.C. § 2241 (Docket 1)
is dismissed without prejudice.
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2. 	That the Magistrate Judge’s report and recommendation (Docket 21)
is rejected.
Dated January 13, 2022.
BY THE COURT:
/s/ Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE
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