Opinion
1-23-CV-00986-DII
11-21-2023
WILLIAM JAMES WISE, Plaintiff v. G. ROSALEZ, WARDEN, FCI BASTROP; Defendant
REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
DUSTIN M. HOWELL, UNITED STATES MAGISTRATE JUDGE
TO THE HONORABLE UNITED STATES DISTRICT JUDGE
Before the Court is Petitioner William James Wise's Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241, Dkt. 1, and Respondent Warden FNU Rosalez's Response and Motion to Dismiss, Dkt. 7. The District Judge referred Wise's petition to the undersigned for Report and Recommendation, pursuant to 28 U.S.C. § 636(b)(1), Federal Rule of Civil Procedure 72, and Rule 1, Appendix C of the Local Rules of the U.S. District Court for the Western District of Texas. The undersigned recommends granting the motion.
I. BACKGROUND
Wise is serving a 120-month term of imprisonment for evading or defeating a tax due to the United States. Dkt. 7-1, at 3. Wise is currently incarcerated at the Bastrop Federal Correctional Institution, located in Bastrop, Texas, and his statutory release date is November 24, 2029. Id. at 6.
Wise alleges that the Bureau of Prisons (“BOP”) has not properly applied his credits earned under the First Step Act (“FSA”) to his sentence and evaluated him for pre-release custody in accordance with the Second Chance Act (“SCA”). Dkt. 1, at 6. On October 5, 2023, BOP calculated Wise's earned time credits under the FSA and determined that he had 365 days of credits to be applied toward early supervised release and 460 days of credits to be applied toward residential reentry/home confinement. Dkt. 7-2, at 3. Wise alleges that he has been deprived of 60 days of FSA time credits due to BOP erroneously calculating his time credits at a rate of 10 days per month instead of 15 days per month during his first year of eligibility even though he has been assessed at minimum risk during his seven years in BOP custody. Dkt. 1, at 6-8. He asks the Court to order BOP to recalculate his first year of incarceration at a rate of 15 days per month which he alleges will result in an additional 60 days of time credits. Id. at 8.
Warden Rosalez moves to dismiss Wise's petition on the grounds that Wise has failed to demonstrate any violation of the FSA because he was not entitled to accrue 15 days per month of FSA time credits until he first completed two consecutive assessment periods with a minimum or low risk of recidivism score. Dkt. 7, at 3. Rosalez argues that the evidence shows that “after his first two assessment periods (during which he earned 10 credits per 30 days), Wise was awarded 15 credits per 30 days for all subsequent assessment periods. Therefore, there has been no error in the calculation of Wise's FSA time credits.” Id. at 4. Wise did not respond to Rosalez's motion.
II. LEGAL STANDARD
A petitioner may seek habeas relief under 28 U.S.C. § 2241(c)(3) if he is “in custody in violation of the Constitution or laws or treaties of the United States.” A prisoner bringing a § 2241 petition is limited to attacking “the manner in which a sentence is carried out or the prison authorities' determination of its duration, and must be filed in the same district where the prisoner is incarcerated.” Pack v. Yusuff, 218 F.3d 448, 451 (5th Cir. 2000).
The Attorney General, through BOP, is responsible for administering a district court's sentence. United States v. Wilson, 503 U.S. 329, 335 (1992). BOP, not the district court, has the statutory authority to decide “where a federal sentence will be served, when it begins, and, in certain respects, how long it will last.” United States v. Aparicio, 963 F.3d 470, 478 (5th Cir. 2020) (citation omitted); see also United States v. Dowling, 962 F.2d 390, 393 (5th Cir. 1992) (stating that “credit awards are to be made by the Attorney General, through the Bureau of Prisons, after sentencing”). Therefore, “BOP, not the district court, is empowered to calculate 18 U.S.C. § 3585(b) credits after the prisoner begins his sentence.” Aparicio, 963 F.3d at 478. Prisoners are afforded administrative review of their credit computation and may seek judicial review of the computation after exhausting administrative remedies with BOP. Id.
A petitioner must exhaust his administrative remedies through BOP before filing a § 2241 petition. Gallegos-Villalon v. United States, 688 F.3d 190, 194 (5th Cir. 2012). But failure to exhaust is not a jurisdictional requirement. See United States v. Franco, 973 F.3d 465, 468 (5th Cir. 2020). Exceptions to the exhaustion requirement may be made “where the available administrative remedies either are unavailable or wholly inappropriate to the relief sought, or where the attempt to exhaust such remedies would itself be a patently futile course of action.” Gallegos-Villalon, 688 F.3d at 194 (quoting Fuller v. Rich, 11 F.3d 61, 62 (5th Cir. 1994)). Exceptions may be made only in “extraordinary circumstances,” and the petitioner “bears the burden of demonstrating the futility of administrative review.” Fuller, 11 F.3d at 62.
III. ANALYSIS
A. The First Step Act
In December 2018, Congress passed the First Step Act. The FSA was implemented in phases. First, the Attorney General developed and released a “risk and needs assessment system.” 18 U.S.C § 3632(a). The Act then required BOP to “implement and complete the initial intake risk and needs assessment for each prisoner.” 18 U.S.C. § 3621(h)(1)(A). The FSA required BOP to “determine the recidivism risk of each prisoner as part of the intake process, and classify each prisoner as having minimum, low, medium, or high risk for recidivism.” 18 U.SC. § 3632(a)(1). BOP was also required to determine the type and amount of EvidenceBased Recidivism Reduction programming and Programming Activities appropriate for each prisoner. Id. § 3632(a)(3). The FSA then gave BOP two years after completing the risk and needs assessment for each prisoner to “phase in” program implementation. Id. § 3621(h)(2)(A). During the two-year phase-in period, the FSA allowed BOP to begin offering incentives, including time credits towards pre-release custody or supervised release, to prisoners who participated in EBRR programming and PAs. Id. §§ 3621(h)(4), 3632(d)(4)(A). In January 2022, BOP published its final rule implementing FSA time credit calculation procedures. 28 C.F.R. §§ 523, 541.
See Press Release No. 22-30, U.S. Dep't of Justice, Justice Department Announces New Rule Implementing Federal Time Credits Program Established by the First Step Act (Jan. 13, 2022), https://www.justice.gov/opa/pr/justice-department-announces-new-rule-implementing-federal-time-credits-program-established.
B. The Second Chance Act
The SCA amended 18 U.S.C. § 3624(c), which governs pre-release residential reentry center placements. See 18 U.S.C. § 3624(c); Walker v. Nash, No. A-16-CV-465-LY, 2016 WL 4386085, at *3 (W.D. Tex. Aug. 16, 2016). The SCA permits BOP to consider placing inmates nearing the end of their sentences in pre-release community confinement. 18 U.S.C. § 3624(c). This may include placement in a community correctional facility, like a residential reentry center, or in-home detention. Id. § 3624(c)(1), (2); C.F.R. § 570.20. The statute provides that placement in pre-release custody is “not to exceed 12 months.” 18 U.S.C. § 3624(c)(1).
Further, placement in in-home detention can be for only 10 percent of the inmate's term of imprisonment or 6 months, whichever is shorter. Id. § 3624(c)(2); 28 C.F.R. § 570.21. The 6 months of home confinement is not additional to the 12 months of pre-release custody. Guess v. Werlinger, 421 Fed.Appx. 215, 217 (3d Cir. 2011). Rather, the statute authorizes a maximum of 12 months pre-release custody, either to a residential reentry center, or a combination of residential reentry center placement and home confinement. 18 U.S.C. § 3624(c).
The statute requires BOP to assess prisoners for placement in various facilities on an individual basis consistent with five factors set forth in § 3621(b).
Those factors are: (1) the nature of the facility contemplated; (2) the nature and circumstances of the offense; (3) the history and characteristics of the prisoner; (4) any statement by the court that imposed the sentence-(A) concerning the purposes for which the sentence to imprisonment was determined to be warranted, or (B) recommending a type of penal or correctional facility as appropriate; and (5) any pertinent policy statement issued by the Sentencing Commission. 18 U.S.C. § 3621(b).
C. BOP's Assessment of Wise's FSA Time Credits
Rosalez argues that Wise has not demonstrated that he is entitled to any additional time credits that are not already reflected in his most recent FSA Time Credit Assessment and that his petition should therefore be dismissed. Dkt. 7, at 4. The undersigned agrees.
Under the First Step Act, eligible prisoners earn 10 days of time credits for every 30 days of successful participation in recommended programming. See 18 U.S.C. § 3632(d)(4)(A)(i); 28 C.F.R. § 523.42(c)(1). Additionally, if the prisoner is determined to be a minimum or low risk for recidivating and has maintained a consistent minimum or low risk of recidivism for his most recent two consecutive risk and needs assessments, a prisoner earns 15 days of credits for every 30 days of successful participation. See 18 U.S.C. § 3632(d)(4)(A)(ii); 28 C.F.R. § 523.42(c)(2). Here, the evidence shows that BOP awarded Wise the correct amount of FSA credits. He was awarded 10 credits per 30 days for his first two assessments-from December 21, 2018, to January 18, 2019, and from January 18, 2019, to July 17, 2019. Dkt. 7-2, at 16-18. Wise was assessed as minimum risk during those two consecutive assessments. Id. After two consecutive minimum risk assessments, Wise began earning 15 credits for 30 days for all subsequent assessment periods. Id. Contrary to Wise's position, nothing in the FSA requires that prisoners receive 15 credits per 30 days during their first two assessments. Because Wise has not demonstrated any error in BOP's calculation of his time credits, Rosalez's Motion to Dismiss, Dkt. 7, should be granted.
IV. RECOMMENDATION
In accordance with the foregoing discussion, the undersigned RECOMMENDS that the District Court GRANT Rosalez's unopposed Motion to Dismiss, Dkt. 7. Wise's claims should be DISMISSED.
V. WARNINGS
The parties may file objections to this Report and Recommendation. A party filing objections must specifically identify those findings or recommendations to which objections are being made. The District Court need not consider frivolous, conclusive, or general objections. See Battle v. United States Parole Comm'n, 834 F.2d 419, 421 (5th Cir. 1987). A party's failure to file written objections to the proposed findings and recommendations contained in this Report within fourteen days after the party is served with a copy of the Report shall bar that party from de novo review by the District Court of the proposed findings and recommendations in the Report and, except upon grounds of plain error, shall bar the party from appellate review of unobjected-to proposed factual findings and legal conclusions accepted by the District Court. See 28 U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140, 150-53 (1985); Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).