Moore v. Cooper

— 1 — — 2 — — 3 — 4 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 5 AT TACOMA 6 KNEKO MOORE, Case No. 2:25-cv-00477-TMC-TLF 7 Petitioner, v. REPORT AND 8 RECOMMENDATION ANDREW COOPER, 9 Noted for September 17, 2025 Respondent. — 10 — 11 Petitioner Kneko Moore is a federal prisoner confined at the Federal Detention 12 Center in SeaTac, Washington (“FDC SeaTac”). Currently pending before the Court is 13 Petitioner’s Petition for writ of habeas corpus under 28 U.S.C. § 2241 , in which he 14 asserts the Bureau of Prisons (“BOP”) has not provided him with frequent 15 reassessments of his risk of recidivism and is improperly refusing to apply First Step Act 16 earned time credits (FSA credits) to his sentence. After consideration of the relevant 17 record, the Court recommends the Petition (Dkt. 1) be DISMISSED with prejudice. 18 I. BACKGROUND 19 Petitioner is serving a 77-month term of imprisonment with three years of 20 supervision, for a conviction from the District of Oregon for unlawfully possessing a 21 firearm. That sentence was imposed consecutive to a 6-month term of imprisonment for 22 violating a condition of supervised release on another conviction. Dkt. 10, Declaration of 23 George Cho; Dkt. 10-1, Ex. 1, Sentence Data, at 3-7; United States v. Moore, 3:20-cr24 00474- IM, Dkt. 109 (D. Or. Feb. 9, 2023); United States v. Moore, 3:16-CR-00068-IM. 1 Petitioner is currently serving his sentence at FDC SeaTac, with a projected release 2 date of July 6, 2026.1 3 On March 14, 2025, Petitioner filed this habeas corpus petition, alleging he is 4 entitled to FSA credits after participating in recidivism programs. As Respondent points 5 out, it appears the Petition has been copied from a petition filed by another individual. 6 Dkt. 1. 7 In response to the Petition, Respondent argues Petitioner is not entitled to 8 federal habeas relief because: (1) Petitioner failed to exhaust his administrative 9 remedies prior to filing the Petition and (2) the Court lacks jurisdiction over Petitioner’s 10 claim that BOP incorrectly assessed his risk of recidivism or improperly denied his 11 request for transfer to prerelease custody. Dkt. 9. 12 II. DISCUSSION 13 A. Exhaustion 14 Even though Section 2241 does not contain an explicit exhaustion requirement, 15 generally, federal prisoners must exhaust all available administrative remedies before 16 seeking habeas corpus relief in federal court. Martinez v. Roberts, 804 F.2d 570 , 571 17 (9th Cir. 1986); Ward v. Chavez, 678 F.3d 1042, 1045 (9th Cir. 2012); Laing v. Ashcroft, — 18 — 370 F.3d 994, 997 (9th Cir. 2004). Courts have applied this administrative exhaustion 19 requirement to § 2241 in order: (1) to develop a factual record that is capable of being 20 reviewed; (2) to conserve judicial resources if relief is granted at the administrative level; — 21 — — 22 — — 23 — 1 The Court takes judicial notice of Petitioner’s release date of July 6, 2026, noted on the Bureau of 24 Prisons’ (“BOP”) website. See https://www.bop.gov/inmateloc (last visited Aug. 11, 2025). 1 and (3) to provide the administrative agency with the first opportunity to correct its 2 errors. See Ruviwat v. Smith, 701 F.2d 844, 845 (9th Cir. 1983) (per curiam). 3 In § 2241 cases, exhaustion is a prudential rather than jurisdictional requirement, 4 and it is therefore subject to waiver. Ward, 678 F.3d at 1045 . Courts may waive the 5 exhaustion requirement when pursuit of administrative remedies would be futile. Ward, — 6 — 678 F.3d at 1045 . 7 The BOP has established an administrative remedy program; prisoners can 8 “seek formal review of an issue relating to any aspect of [their] own confinement[,]” 9 including the BOP’s computation of time credits against their sentences. 28 C.F.R. § 10 542.10(a); United States v. Wilson, 503 U.S. 329, 335 (1992). Except in certain limited 11 situations, a prisoner “shall first present an issue of concern informally” to prison staff. — 12 — 28 C.F.R. § 542.13 (a). If dissatisfied with prison staff’s informal response, the prisoner 13 must then formally complain to the prison’s warden. See id. § 542.14(a)–(c). If 14 dissatisfied with the warden’s response, the prisoner may appeal to the Regional 15 Director of the region in which he is confined. Id. § 542.15(a). And if the prisoner is 16 dissatisfied with the Regional Director’s response, they may appeal to the BOP’s 17 General Counsel. Id. “Appeal to the General Counsel is the final administrative appeal.” 18 Id. 19 Here, Respondent has submitted evidence demonstrating that, despite the 20 availability of relief through these channels, Petitioner did not pursue the BOP’s 21 administrative remedies asking for a reassessment of his risks or requesting that his 22 FSA credits be applied to his sentence. Dkt. 10, Declaration of George Cho, at ¶6; Dkt. 23 10 at Exhibit 4. — 24 — 1 Even though Petitioner did not exhaust his administrative remedies, it appears 2 that requiring Petition to exhaust his remedies would be an exercise in futility because 3 Respondent avers Petitioner has received reassessments of his risk of recidivism twice 4 a year, including a reassessment at the end of January 2025. Dkt. 10 at Exhibit 3. He 5 was assessed to be at “medium” risk of recidivism. Id. This was Petitioner’s fifth 6 assessment. Id. at ¶4. 7 Because it appears exhaustion would have been futile, the Court addresses the 8 second argument raised by Respondent. 9 B. Jurisdiction to Review FSA Determinations made by BOP 10 Respondent further contends the Court lacks jurisdiction over Petitioner's claim 11 that the BOP has incorrectly assessed his risk of recidivism or improperly denied his 12 request for transfer to prerelease custody. Dkt. 1. 13 Petitioner’s claim challenges BOP's calculation of his FSA credits. The FSA 14 directs the BOP to determine and provide “the type and amount of evidence-based 15 recidivism reduction programming that is appropriate for each prisoner and assign each 16 prisoner to such programming accordingly.” 18 U.S.C. § 3632 (a)(3). As part of the 17 intake process, each prisoner is classified as having a minimum, low, medium, or high 18 risk of recidivism, otherwise known as their “PATTERN score”. 18 U.S.C. § 3632 (a)(1). 19 Prisoners are provided opportunities to reduce their PATTERN score during periodic 20 reassessments. 21 Under the FSA, federal prisoners may be eligible to earn time credits for 22 successfully completing evidence-based recidivism reduction programs or productive — 23 — — 24 — 1 activities. 18 U.S.C. § 3632 (a). These time credits may be applied towards time in 2 prerelease custody or supervised release. 18 U.S.C. § 3632 (d)(4)(C). 3 Not all federal prisoners are eligible to earn and apply time credits under the 4 FSA. Relevant to this case, Petitioner is eligible for prerelease custody or supervised 5 release only if he “has shown through the periodic risk assessments a demonstrated 6 recidivism risk reduction or has maintained a minimum or low recidivism risk, during the 7 prisoner's term of imprisonment.” 18 U.S.C. § 3624 (g)(1)(B). Petitioner was last 8 administered a risk assessment on January 26, 2025; BOP determined Petitioner was 9 at “medium risk” of recidivism. Dkt. 10 at ¶ 4. 10 A prisoner determined “to be at a minimum or low risk for recidivating, who, over 11 2 consecutive assessments, has not increased their risk of recidivism, shall earn an 12 additional 5 days of time credits for every 30 days of successful participation in 13 evidence-based recidivism reduction programming or productive activities.” 18 U.S.C. § 14 3632(d)(4)(A)(ii). Time credits earned under 18 U.S.C. § 3632 (d)(4) “shall be applied 15 toward time in prerelease custody or supervised release.” 18 U.S.C. § 3632 (d)(4)(C). To 16 be eligible to apply FSA credits to prerelease custody or supervised release, the 17 prisoner must, among other things, have shown “through the periodic risk 18 reassessments a demonstrated recidivism risk reduction or ha[ve] maintained a 19 minimum or low recidivism risk, during the prisoner's term of imprisonment.” 18 U.S.C. § 20 3624(g)(1)(B). 21 Petitioner contends that he has engaged in activities that place him into the low22 risk category and that he is entitled to have FSA credits applied to early release. He 23 does not claim Respondent has violated the United States Constitution or has exceeded — 24 — 1 his statutory authority in finding he is not entitled to application of FSA credits -- he 2 simply disagrees with BOP's calculation of his FSA credits. 3 Under 18 U.S.C. § 3625 , “any determination, decision, or order under [28 U.S.C. 4 §§ 3621–3626]” is excluded from judicial review under the federal Administrative 5 Procedure Act (“APA”). See, Reeb v. Thomas, 636 F.3d 1224 , 1227–28 (9th Cir. 2011) 6 (interpreting 18 U.S.C. § 3625 to preclude judicial review of “the BOP's individualized 7 RDAP determinations made pursuant to 18 U.S.C. § 3621”). Thus, district courts lack 8 jurisdiction to review certain discretionary decisions made by the BOP, such as “any 9 substantive decision by the BOP to admit a particular prisoner into RDAP, or to grant or 10 deny a sentence reduction for completion of the program,” under the APA framework. 11 Rodriguez v. Copenhaver, 823 F.3d 1238, 1242 (9th Cir. 2016). 12 BOP decisions as to a prisoner's recidivism risk and transfers to prerelease 13 custody or early supervised release pursuant to the application of FSA time credits fall 14 within this jurisdictional bar. See 18 U.S.C. § 3621 (h) (governing initial implementation 15 of risk and needs assessment system), 3624(g) (governing transfer to prerelease 16 custody or early supervised release pursuant to application of FSA time credits). 17 While a district court may properly consider whether the BOP, in reaching such 18 decisions, acted contrary to established federal law, violated the Constitution, or 19 exceeded the BOP's statutory authority, Petitioner does not make this argument. As 20 discussed above, the Court lacks jurisdiction to review BOP's individualized 21 determination of Petitioner's recidivism risk category and how that determination 22 statutorily would preclude application of FSA credits toward early release. — 23 — — 24 — 1 III. CONCLUSION 2 For the foregoing reasons, the Court RECOMMENDS Petitioner’s § 2241 writ for 3 petition for habeas corpus be DENIED because the Court lacks jurisdiction, and the 4 case should be DISMISSED with prejudice. 5 Pursuant to 28 U.S.C. § 636 (b)(1) and Federal Rule of Civil Procedure 72(b), the 6 parties shall have fourteen (14) days from service of this report to file written objections. 7 See also Fed. R. Civ. P. 6. Failure to file objections will result in a waiver of those 8 objections for purposes of de novo review by the district judge, see 28 U.S.C. § 9 636(b)(1)(C), and can result in a waiver of those objections for purposes of appeal. See 10 Thomas v. Arn, 474 U.S. 140, 142 (1985); Miranda v. Anchondo, 684 F.3d 844, 848 (9th 11 Cir. 2012) (citations omitted). Accommodating the time limit imposed by Rule 72(b), the 12 Clerk is directed to set the matter for consideration on September 17, 2025, as noted in 13 the caption. — 14 — Dated this 2nd day of September, 2025. — 15 — — 16 — 17 A 18 Theresa L. Fricke United States Magistrate Judge — 19 — — 20 — — 21 — — 22 — — 23 — — 24 —