Opinion
19-CR-472 (LAP)
07-29-2024
UNITED STATES OF AMERICA, v. SALVATORE TAGLIAFERRO, Defendant.
ORDER
LORETTA A. PRESKA, Senior United States District Judge:
Before the Court is Defendant Salvatore Tagliaferro's pro se motion, (dkt. no. 242), the Government's opposition, (dkt. no. 246), and Mr. Tagliaferro's replies, (dkt. nos. 249, 252).
For the reasons set out below, the motion is DENIED.
I. Background
On April 28, 2021, Mr. Tagliaferro was convicted on counts of (1) conspiracy to commit embezzlement of union assets and honest services wire fraud in violation of 18 U.S.C. § 371, (2) conversion of union assets in violation of 29 U.S.C. § 501(c) and 18 U.S.C. § 2, and (3) honest services wire fraud in violation of 18 U.S.C. §§ 1343, 1346, and 2. (Min. Entry dated Apr. 28, 2021.) On September 9, 2021, Mr. Tagliaferro was sentenced to a term of 60 months of imprisonment followed by two years of supervised release. (See dkt. no. 188.) He surrendered on January 10, 2022 and has served approximately 30 months of his term of incarceration.
On April 24, 2024, Mr. Tagliaferro filed the instant motion, seeking a reduction of his term of imprisonment and modification of the conditions of confinement pursuant to the First Step Act and the Second Chance Act. (See dkt. no. 242.)
II. Discussion
The First Step Act (“FSA”) permits eligible federal inmates to earn credits against their sentence based on their participation in recidivism reduction programs or other program activities. 18 U.S.C. § 3632(d)(4). Such credits may be applied toward early supervised release or transfer to home or community-based confinement. Id. Moreover, under the Second Chance Act, federal inmates may serve up to one year of their term of imprisonment in pre-release custody, such as home confinement or a community correctional facility. Id. § 3624(c). The BOP “retains discretion under the Second Chance Act to decide whether and when an inmate should be placed” in pre-release custody. United States v. Accardi, No. 11 CR 12 RMB, 2013 WL 1903559, at *1 (S.D.N.Y. May 7, 2013) (quoting Pasonick v. Strada, No. 12 cv 6204(SLT), 2013 WL 431332, *2 (E.D.N.Y. Feb. 4, 2013)).
An inmate choosing to challenge the BOP's calculation of credits should do so via a writ of habeas corpus under 28 U.S.C. § 2241. See id. Before filing a § 2241 petition with a district court, a federal inmate must first exhaust each step of the Administrative Remedy Program: (1) attempting to resolve the issue informally with the staff; (2) submitting a formal written Administrative Remedy Request to the Warden within 20 days of the occurrence of the basis for the complaint; (3) appealing an unfavorable response by the Warden to the BOP Regional Director within 20 calendar days of the date of the Warden's signed response; and (4) appealing an unfavorable decision by the BOP Regional Director to the BOP General Counsel within 30 calendar days of the date of the BOP Regional Director's signed response. 28 C.F.R. §§ 542.13-542.15. “Failure to exhaust administrative remedies results in a procedural default, which bars judicial review unless the petitioner persuades the court that the failure to exhaust should be excused.” Groysman v. Baird, 16-CV-4218 (PKC), 2016 WL 4097087, at *2 (E.D.N.Y. Aug. 1, 2016) (quoting Owusu-Sakyi v. Terrell, No. 10-CV-507, 2010 WL 3154833 (E.D.N.Y. Aug. 9, 2010)).
Here, Mr. Tagliaferro appears to raise arguments both challenging the BOP's calculations and requesting a modification of his sentence. If the Court were to construe Mr. Tagliaferro's motion as a habeas petition under § 2241, it would fail because he has not exhausted his administrative remedies and because this judicial district is not the proper venue.
Mr. Tagliaferro clearly began to exhaust his administrative remedies before changing course and filing this motion with the Court. He supplies copies of his attempt at an informal resolution, the formal Administrative Remedy Request to Warden Thompson, and his appeal of Warden Thompson's response to the BOP Regional Director. (Dkt. no. 242, Exs. 4-B-4-D.) Based on the provided records, however, he did not appeal the BOP Regional Director's response to the BOP General Counsel. Unfortunately for Mr. Tagliaferro, an attempt to shortcut the administrative process results in a procedural defect barring judicial review. See Groysman, 2016 WL 4097087, at *2.
Moreover, a § 2241 petition must be filed in the district of confinement. Rumsfeld v. Padilla, 542 U.S. 426, 442-43 (2004). Because Mr. Tagliaferro is incarcerated at FCI Fort Dix, the appropriate venue for any § 2241 petition would be the judicial district of New Jersey. For both of these reasons - that is, failure to exhaust and improper venue - a § 2241 petition would have failed.
Still, Mr. Tagliaferro's motion, while submitted on a § 2241 petition form, seemingly raises arguments beyond the scope of § 2241. In addition to the calculation-based reasons for requesting a reduction of his sentence, Mr. Tagliaferro notes a “serious and well documented medical history[] that for the most part has gone untreated.” (Dkt. no. 249.) He also reiterates that “my intention was and still is a sentence reduction and immediate release from physical incarceration.” (Id.)
Because “the First Step Act freed district courts to consider the full slate of extraordinary and compelling reasons that an imprisoned person might bring before them in motions for compassionate release,” United States v. Brooker, 976 F.3d 228, 237 (2d Cir. 2020), the Court construes the instant motion as a second motion for compassionate release pursuant to 18 U.S.C. § 3582(c)(1)(A). “Before it can reduce a term of imprisonment or release a defendant under § 3582(c)(1)(A), a district court must ‘find[ ] that . . . extraordinary and compelling reasons warrant such a reduction.'” United States v. Jones, 17 F.4th 371, 374 (2d Cir. 2021) (quoting, with alterations, 18 U.S.C. § 3582(c)(1)(A)(i)). Whether “extraordinary and compelling” circumstances exist is a “threshold question.” United States v. Daugerdas, 613 F.Supp.3d 807, 809-10 (S.D.N.Y. 2020). The U.S. Sentencing Guidelines list circumstances that might qualify as “extraordinary and compelling,” such as medical circumstances, age, family circumstances, abuse by BOP, and “other reasons” that are “similar in gravity.” U.S.S.G. § 1B1.13.
A separate motion for compassionate release is currently pending before this Court. (See dkt. no. 237.)
Mr. Tagliaferro's motion does not provide the Court with any extraordinary and compelling reason to modify his sentence. According to Mr. Tagliaferro, he has accrued 365 days of FSA credit toward early supervised release, 190 days of FSA credit toward pre-release custody, and 180 days of credit under the Second Chance Act. (Dkt. nos. 249, 252.) Mr. Tagliaferro and the BOP agree that he is entitled to 365 days of FSA early release credit, which results in a Projected Release Date of April 27, 2025. (Dkt. no. 246-1.) The parties also agree that Mr. Tagliaferro will receive 180 credits under the Second Chance Act, resulting in his transfer to pre-release custody on or around October 28, 2024.
They disagree, however, as to the amount of FSA credit that Mr. Tagliaferro has earned toward pre-release custody.
BOP records indicate that Mr. Tagliaferro has earned only 10 days of FSA credit toward pre-release custody. Mr. Tagliaferro appears to include in his calculation of 190 days those credits that he “will have earned during my time in BOP custody.” (Dkt. no. 252 at 1.) Credit cannot be applied until it is “earned . . . in an amount that is equal to the remainder of the [inmate's] imposed term of imprisonment.” 18 U.S.C. 3624(g)(1)(A); see
Program Statement 5410.01 CN-2 (BOP Mar. 10, 2023), available at https://www.bop.gov/resources/policyandforms.jsp (last accessed July 23, 2024) (The “First Step Act requires that, if an individual meets the criteria outlined in (c)(1), the credits must be applied when the amount of time credits earned is equivalent to [the] remainder of the prisoner's imposed term of imprisonment, consistent with the method for calculation described below.”). Thus, Mr. Tagliaferro's inclusion of anticipated credits is incorrect, and, even still, it is not an “extraordinary and compelling” reason for compassionate release.
Moreover, Mr. Tagliaferro's passing reference to a “serious and well documented medical history” presumably draws on the medical circumstances briefed in his other pending motion for compassionate release. (See dkt. no. 237.) As such, the Court will consider the viability of this ground when opining on that motion.
III. Conclusion
For the reasons set out above, Mr. Tagliaferro's motion for a sentence reduction pursuant to the First Step Act and the Second Chance Act, (dkt. no. 242), is denied. Should Mr. Tagliaferro choose to pursue a remedy under 28 U.S.C. § 2241, such avenue of relief would require him first to exhaust his administrative remedies and to file suit in the appropriate venue.
The Clerk of the Court shall mail a copy of this Order to Mr. Tagliaferro.
SO ORDERED.