Opinion
CV 23-01195 PHX MTL (CDB)
03-01-2024
John Bradley, Petitioner, v. RA Heisner, FCI Phoenix Warden, Respondent.
TO THE HONORABLE MICHAEL T. LIBURDI:
REPORT AND RECOMMENDATION
Camille D. Bibles, United Stales Magistrate Judge
Petitioner John Bradley seeks relief pursuant to 28 U.S.C. § 2241, asking the Court to order the the Federal Bureau of Prisons (“BOP”) to recalculate the expiration of his sentence. The matter is fully briefed and ready for the Court's review.
I. Background
On January 23, 2018, pursuant to a plea agreement, the District of Minnesota entered judgment against Bradley on one count of conspiracy to distribute cocaine base and heroin, in violation of 21 U.S.C. §§ 841(a), 841(b)(1)(A), and 846. See United States v. Bradley, 17-CR-00153 (D. Minn.), at ECF No. 288. On July 26, 2018, Bradley was sentenced to a term of 132 months' imprisonment followed by five years of supervised release, with credit for time served. Id. at ECF No. 288; ECF No. 468 at 15. Per the BOP inmate information database Bradley has a current release date of January 12, 2027.
In his § 2241 petition Bradley asserts the BOP is refusing to apply First Step Act (“FSA”) credits to his sentence, arguing he has earned extensive program credits and is entitled to have the maximum allowable one year of credits deducted from his sentence. Bradley asserts the BOP is “violating their own rules and procedures, as well as supporting Law of the (FSA),” by failing to apply his earned FSA credits to his sentence. (ECF No. 1 at 7). Bradley contends that, notwithstanding his assignment to “programming activities that met requirements of the (FSA) and the case manager explicitly confirmed to petitioner that the cases qualified to reduce his recidivism level,” he “has yet to have his recidivism lowered and earned days applied.” (ECF No. 1-1 at 5).
Respondent asserts that although Bradley did earn FSA credits, because he was determined to be a medium risk for recidivism during his review on March 24, 2023, he is not eligible to have these credits applied to his sentence. (ECF No. 12 at 2).
Respondent notes Bradley was due for a review in September of 2023. (ECF No. 12 at 2). In his reply in support of his petition, filed October 16, 2023, Bradley asserts he “is now at a medium recidivised [sic] level.” (ECF No. 16 at 1).
II. Analysis
Habeas corpus relief extends to a person in custody under the authority of the United States. See 28 U.S.C. § 2241. Relief is available if a federal prisoner can show he is “in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241(c)(3).
Resolution of Bradley's claim for relief involves examination of the the “First Step Act of 2018,” Pub. L. No. 115-391, 132 Stat. 5194 (1980). The FSA addresses the reentry of incarcerated individuals into society. Through the FSA, Congress directed the BOP to implement reentry initiatives, including programming and programming incentives. Congress directed the United States Attorney General to develop a risk and needs assessment system, to appropriately and to direct programming and programming incentives by “determining] the recidivism risk of each prisoner” and classifying “each prisoner as having minimum, low, medium, or high risk for recidivism.” 18 U.S.C. § 3632(a). An eligible prisoner can earn 10 days (plus an additional five days if he meets the criteria for minimum or low risk of recidivism) of FSA time credits “for every 30 days of successful participation in evidence-based recidivism reduction programming or productive activities.” 18 U.S.C. § 3632(d)(4)(A); 28 C.F.R. § 523.42(c).
Pursuant to 18 U.S.C. § 3624(g), a prisoner eligible for the application of earned credits is defined as one who meets the following four criteria:
(A) the prisoner must have earned FTCs;
(B) the prisoner must have demonstrated “recidivism risk reduction or has maintained a minimum or low recidivism risk during their term of imprisonment”;
(C) the prisoner “has had the remainder of their imposed term of imprisonment computed under applicable law”; and
(D) the prisoner has either (I) “been determined under the System to be a minimum or low risk to recidivate pursuant to the last two reassessments of the prisoner,” or (II) has had a petition to be transferred to prerelease custody or supervised release approved by the warden after the warden has determined the prisoner meets certain criteria.18 U.S.C. § 3624(g)(A)-(D) (emphasis added).
Although a prisoner who is a medium risk for recidivism is eligible to earn FSA time credits for successful participation in recidivism programming, pursuant to 18 U.S.C. § 3632(d), they must be a “minimum or low risk” to have those credits applied to their sentence. Section 3624(g) requires the prisoner to have “been determined under the System to be a minimum or low risk to recidivate pursuant to the last 2 reassessments of the prisoner” or has specific approval by the warden. 18 U.S.C. § 3624(g)(1)(D)(i). For early transfer to supervised release, § 3624(g) requires that the inmate “has been determined under the System to be a minimum or low risk to recidivate pursuant to the last reassessment of the prisoner.” Id. § 3624(g)(1)(D)(ii).
Time credits may be applied toward early transfer to supervised release “only when an eligible inmate has ... maintained a minimum or low recidivism risk through his or her last risk and needs assessment.” 28 C.F.R. § 53.44(d)(1); see also ... BOP Program Statement 5410.01 (setting forth requirements for application of FSA time credits). The Program Statement further states that inmates who have a high or medium recidivism risk level are ordinarily “considered inappropriate for early transfer to prerelease custody or supervised release.” []Martinez v. Gutierrez, 2023 WL 6466490, at *3 (D. Ariz. July 14, 2023), report and recommendation adopted, 2023 WL 6464850 (D. Ariz. Oct. 4, 2023).
The unambiguous language of 18 U.S.C. § 3624(g) precludes application of time credits until an inmate has lowered their recidivism risk level to a low or minimum classification. See LaPuente v. Derr, 2023 WL 3821136, at *5 (D. Haw. June 5, 2023) Application of earned time credits, i.e., creating and implementing an earlier release date based on earned credits, cannot occur until the inmate has been determined to be a minimum or low recidivism risk. See, e.g., Moody v. Gubbiotti, 2022 WL 4976308, *6 (D.N.J. Oct. 3, 2022); Bell v. Finley, 2022 WL 1721045, *4 (M.D. Pa. May 27, 2022). Accordingly, 18 U.S.C. § 3624(g) precludes application of Bradley's earned time credits until, or unless, he lowers his recidivism risk level as required by the FSA.
Additionally, Bradley is not entitled to relief pursuant to § 2241 because the challenged decision is committed to the discretion of the BOP. See Reeb v. Thomas, 636 F.3d 1224, 1227 (9th Cir. 2011).
Whether to permit an inmate to complete the end-phase of their sentence outside of formal prison custody is a matter of discretion left to the BOP. See Smallwood v. Thompson, 2021 WL 5112663 (E.D. Cal. Nov. 3, 2021) (finding “whether or not to grant Petitioner early release” pursuant to the FSA is “a matter within the BOP's discretion.”). And although application of an inmate['s] FSA FTCs may effectively move up the date that inmate is eligible to be considered for prerelease custody, application of those FTCs do not compel the BOP to allow that inmate to participate in prerelease custody. Id. “District courts interpreting this provision have uniformly held that designation and placement decisions made by the BOP, including whether an inmate is granted home confinement, are not reviewable by the district court.” Arreola v. von Blanckensee, [], 2022 WL 18865120, at *4 (D. Ariz. Oct. 3, 2022), report and recommendation adopted, [], 2023 WL 2242853 (D. Ariz. Feb. 27, 2023). See also Wilcox v. Merlak, [], 2020 WL 996630, at *3 (E.D. Cal. Mar. 2, 2020) (“Thus, Petitioner's challenge to the BOP's discretionary decision with respect to whether and when he is eligible for home confinement placement ... is not reviewable by this Court.”); United States v. Robledo, [], 2020 WL 2542641, at *7 (S.D. Cal. May 19, 2020) (“the decision to grant or deny home confinement is within the discretion of BOP and not subject to judicial review.”).Mars v. Heisner, 2023 WL 4977335, at *6 (D. Ariz. June 26, 2023), report and recommendation adopted, 2023 WL 4960411 (D. Ariz. Aug. 3, 2023).
Furthermore, Bradley does not have a federal constitutional right, i.e., a cognizable liberty interest, in early release via the FSA. See Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1, 7 (1979) (“There is no constitutional or inherent right of a convicted person to be conditionally released before the expiration of a valid sentence.”). Due process protections do not extend to “prisoner classification and eligibility for rehabilitative programs in the federal system. Congress has given federal prison officials full discretion to control these conditions of confinement.” Moody v. Daggett, 429 U.S. 78, 88 n.9 (1976). See also Reeb, 636 F.3d at 1227; McLean v. Crabtree, 173 F.3d 1176, 1184 (9th Cir. 1999); Vargas Diaz v. Heisner, 2024 WL 866368, at *3 (D. Ariz. Feb. 6, 2024); Walton v. Booker, 2006 WL 2374843, *3 (D. Ariz. Aug. 16, 2006).
Accordingly, IT IS RECOMMENDED that Bradley's § 2241 petition at ECF No. 1 be denied.
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.
Pursuant to Rule 72(b), Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. Thereafter, the parties have fourteen (14) days within which to file a response to the objections. Pursuant to Rule 7.2(e)(3) of the Local Rules of Civil Procedure for the United States District Court for the District of Arizona, objections to the Report and Recommendation may not exceed ten (10) pages in length. Failure to timely file objections to any factual or legal determinations of the Magistrate Judge will be considered a waiver of a party's right to de novo appellate consideration of the issues. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc).