Clayburn v. Gunther

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Justin Clayburn,
Petitioner,
v.
Jason Gunther,
Respondent.
No. CV 25-0967-PHX-MTL (MTM)
REPORT AND RECOMMENDATION
TO THE HONORABLE MICHAEL T. LIBURDI, UNITED STATES DISTRICT
JUDGE:
Petitioner filed n Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241.
(Doc. 1.) Judge Liburdi denied Ground One in an Order dated August 18, 2025. Doc. 6.
I. SUMMARY OF CONCLUSION
In Ground Two Petitioner asserts that the Federal Bureau of Prisons (“BOP”) has
violated federal law by failing to grant him earned time credits from the date his sentence
was imposed.
This Court recommends that Ground Two be dismissed without prejudice, as
Petitioner has not exhausted his administrative remedies within the BOP. If the District
Court considers the merits, this Court recommends that Ground Two be dismissed as
lacking in merit.
II. PETITION FOR WRIT OF HABEAS CORPUS
Petitioner filed his Petition (Doc. 1) on March 24, 2025. On September 15, 2025
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Respondent filed an Answer, challenging this Court’s jurisdiction and asserting that
Petitioner has failed to properly exhaust his administrative remedies. Doc. 14 at 4-7.
III. GROUND TWO
A. FSA
Under the First Step Act (“FSA”) federal inmates who participate in programming
earn time credits towards an earlier release date. An eligible inmate “who successfully
completes evidence-based recidivism reduction programming or productive activities,
shall earn time credits,” 18 U.S.C. § 3632(d)(4)(A), that are applied “toward time in
prerelease custody or supervised release.” 18 U.S.C. § 3632(d)(4)(C).
B. Subject Matter Jurisdiction
Federal courts have an independent obligation to examine their own jurisdiction.
See Hernandez v. Campbell, 204 F.3d 861, 865 (9th Cir. 2000). In Reeb v. Thomas, 636
F.3d 1224, 1227 (9th Cir. 2011) the Ninth Circuit noted that 18 U.S.C. § 3625 specifies
that judicial review under the Administrative Procedures Act is not applicable to any
determination, decision, or order “made pursuant to 18 U.S.C. §§ 3621-3624.” 18 U.S.C.
§ 3624(g) “details the criteria for when a prisoner becomes eligible, considering earned
time credit, for transfer to prerelease custody or supervised release.” Bottinelli v. Salazar,
929 F.3d 1196, 1197-98 (9th Cir. 2019).
“A habeas claim cannot be sustained based solely upon the BOP’s purported
violation of its own program statement because noncompliance with a BOP program
statement is not a violation of federal law.” Reeb, 636 F.3d at 1227. Accordingly, a district
court lacks jurisdiction to adjudicate the merits of a petition alleging only “that the BOP
erred in his particular case.” Id. at 1228. In contrast, judicial review is available where a
habeas petition alleges “that BOP action is contrary to established federal law, violates the
United States Constitution, or exceeds its statutory authority.” Id.
In Ground Two Petitioner alleges that in failing to grant earned time credits from
the date Petitioner was sentenced, BOP ignores the statutory definition of when a “sentence
and eligibility for ETCs commence.” Doc. 1 at 8-9. Under Reeb, this claim alleges a
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violation of federal law in a manner sufficient to invoke this Court’s jurisdiction.
Petitioner is serving a 60-month term of imprisonment for felon in possession of a
firearm and making a false statement to acquire a firearm. Doc. 14-1 at 6, 12. Sentence was
imposed on November 29, 2023. Doc. 14-1 at 12.
C. Petitioner’s Failure to Exhaust Administrative Remedies
The Reeb Court noted that inmates may challenge the BOP’s discretionary
determinations through the BOP’s administrative remedy program. 636 F.3d at 1227.
Ordinarily, absent exhaustion, a court should dismiss a petition without prejudice or stay
the proceedings until administrative remedies have been exhausted. See Leonardo v.
Crawford, 646 F.3d 1157, 1160 (9th Cir. 2011).
Petitioner did not exhaust his administrative remedies. Doc. 14-1 at 5, ¶ 12
(declaration of BOP employee Ruelas). Petitioner requests that this failure be excused,
because “engaging in that process with the BOP would be futile.” Doc. 1 at 3-5.
Petitioner’s futility argument is unpersuasive. As a matter of efficiency and judicial
economy, Petitioner should have allowed the BOP the opportunity to correct any errors
through its well-established administrative remedy process, see doc. 14-1 at 3-5, rather than
bypass that process.
Under the facts of Petitioner’s case, this Court will not excuse Petitioner’s failure to
exhaust his administrative remedies, as his failure to do so has impeded preparation of a
useful record and frustrated judicial economy. See Jones v. Bock, 549 U.S. 199, 219 (2007).
This Court recommends that the Petition be dismissed without prejudice for failure to
exhaust administrative remedies.
D. Merits
While this Court recommends that Ground Two be dismissed without prejudice, the
Court will address the merits in the event the District Court elects to do so.
Petitioner alleges that in failing to grant earned time credits from the date he was
sentenced, BOP ignores the statutory definition of when a “sentence and eligibility for
ETCs commence.” Doc. 1 at 8-9. This argument is in conflict with the plain language of
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18 U.S.C. § 3632(d)(4)(A). By that statute the triggering event for an award of ETCs is not
sentencing and federal custody, it is successful participation in “evidence-based recidivism
reduction programming or productive activities.” Id.; see also Stevens v Jacquez, CV-23-
01482-AA, 2024 WL 3200546, at *4. (D. Or. June 25, 2024). Petitioner makes no showing
that he participated in any such programs or activities from his sentencing date until he
arrived at his designated federal facility. See doc. 1 at 8-13 (Petitioner’s argument on
Ground Two) and doc. 14-1 at 7, ¶ 25, 15 (BOP employee Ruelas declaration that Petitioner
did not have a credit earnings start date until his arrival at his first BOP institution on
January 26, 2024, when he completed the risk/needs assessment required by the FSA). On
this record, consistent with 18 U.S.C. § 3632(d)(4)(A) and in the absence of a showing that
Petitioner participated in approved programming before January 26, 2024, this Court
recommends that Ground Two be denied on the merits.
IV. CONCLUSION
IT IS THEREFORE RECOMMENDED that the Petitioner’s Petition for Writ of
Habeas Corpus pursuant to 28 U.S.C. § 2241 (Doc. 1) be DENIED and DISMISSED
WITHOUT PREJUDICE.
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), Federal Rules of
Appellate Procedure, should not be filed until entry of the district court’s judgment. The
parties shall have 14 days from the date of service of a copy of this Report and
Recommendation within which to file specific written objections with the Court. See 28
U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(b) and 72. Thereafter, the parties have 14 days
within which to file a response to the objections.
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Failure to timely file 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 timely file objections to any factual determinations of the
Magistrate Judge will be considered a waiver of a party’s right to appellate review of the
findings of fact in an order of judgment entered pursuant to the Magistrate Judge’s Report
and Recommendation. See Fed. R. Civ. P. 72.
Dated this 24th day of March, 2026.
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