Opinion
C/A No.: 1:19-662-RMG-SVH
04-24-2019
Ernest D. Dailey, Petitioner, v. Bureau of Prisons, Respondent.
REPORT AND RECOMMENDATION
Ernest D. Dailey ("Petitioner") is an inmate at Federal Correctional Institution Williamsburg in Salters, South Carolina, in the custody of the Bureau of Prisons ("BOP"). Petitioner has filed a petition, pro se, for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 challenging the BOP's calculation of his sentence. [ECF No. 7]. Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Civ. Rule 73.02(B)(2)(e) (D.S.C.), the undersigned is authorized to review such pleadings for relief and submit findings and recommendations to the district judge. For the following reasons, the undersigned recommends the district judge dismiss the petition without service of process. I. Factual and Procedural Background
Petitioner originally filed this action as a petition for a writ of mandamus. [ECF No. 1]. After reviewing the initial petition, the court alerted Petitioner to several deficiencies and allowed him to refile as a petition for habeas corpus under 28 U.S.C. § 2241. [ECF No. 5]. Petitioner timely complied with the court's order. [See ECF No. 7].
Petitioner is serving a 262-month term of imprisonment on a conviction for possession of cocaine and possession of a firearm in furtherance of a drug trafficking crime. See United States v. Dailey, Cr. No. 7:14-0072-BO-1 (E.D.N.C.). His projected release date from BOP custody is October 29, 2033. See https://www.bop.gov/inmateloc/ (last visited April 22, 2019). Petitioner asserts the BOP must immediately recalculate his sentence to comply with the First Step Act of 2018, Pub. L. No. 115-015, 132 Stat. 015 (2018) ("First Step Act" or the "Act"). II. Discussion
The court takes judicial notice of Petitioner's prior cases. See Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236, 1239 (4th Cir. 1989) ("The most frequent use of judicial notice of ascertainable facts is in noticing the content of court records.") (citation omitted).
A. Standard of Review
Under established local procedure in this judicial district, a careful review has been made of the petition pursuant to the Rules Governing Section 2254 Proceedings for the United States District Court, the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214, and other habeas corpus statutes. Pro se complaints are held to a less stringent standard than those drafted by attorneys. Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). A federal court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case. Erickson v. Pardus, 551 U.S. 89, 94 (2007). In evaluating a pro se complaint, the plaintiff's allegations are assumed to be true. Fine v. City of N.Y., 529 F.2d 70, 74 (2d Cir. 1975). The mandated liberal construction afforded to pro se pleadings means if the court can reasonably read the pleadings to state a valid claim on which the plaintiff could prevail, it should do so. Nevertheless, the requirement of liberal construction does not mean the court can ignore a clear failure in the pleading to allege facts that set forth a claim currently cognizable in a federal district court. Weller v. Dep't of Soc. Servs., 901 F.2d 387, 390-91 (4th Cir. 1990).
The Rules Governing Section 2254 are applicable to habeas actions brought under § 2241. See Rule 1(b).
B. Analysis
Petitioner claims the First Step Act mandates awarding a full 54 days per year of good conduct time instead of the 47 days customarily awarded by the BOP. Petitioner is correct that Section 102(b)(1) of the First Step Act amends 18 U.S.C. § 3624(b) to permit federal inmates to earn 54 days of good conduct time for each year of the inmate's sentence. However, this provision has not yet taken effect.
In accordance with Section 102(b)(2) of the Act, the amendments made in Section 102(b) take effect when the Attorney General completes the "risk and needs assessment system" required by Section 101(a). Section 101(a) does not require completion of the risk and needs assessment system until 210 days after the Act's enactment. Thus, Section 102(b)(1) will not take effect until approximately July 2019 and, until that date, the BOP has no duty to recalculate Petitioner's sentence.
Petitioner contends the provision allowing for delayed implementation does not apply to the section governing calculation of good conduct time and cites United States v. Walker, Cr. No. 3:10-00298-RRB-1 (D. Or. Feb. 7, 2019). [ECF No. 7 at 7-8]. In Walker, the petitioner alleged recalculation of his good conduct time in accordance with the First Step Act would entitle him to immediate release. Id. at 1. The District of Oregon, concerned with "the equities of the situation," granted relief, but "without a final determination of the merits of the" petitioner's legal arguments. Id.
In this case, Petitioner has not asserted an adjusted release date under the requested recalculation.
Since the enactment of the First Step Act, federal inmates have brought similar § 2241 petitions in district courts across the country. Other than Walker, these petitions have been dismissed for various reasons, including the basis for this recommendation—the law upon which Petitioner relies has not yet taken effect. See, e.g., Rizzolo v. Puentes, C/A No. 1:19-cv-00290-SKO (HC), 2019 WL 1229772 (E.D. Cal. March 15, 2019); Molina v. Underwood, C/A No. 3:19-cv-641-K-BN, 2019 WL 1533444 (N.D. Tex. March 19, 2019) (recommending summary dismissal of petition); Matthews v. Williams, C/A No. 4:19-cv-518, 2019 WL 1639776 (N.D. Ohio April 16, 2019) (summarily dismissing petition); Sheppard v. Quintana, C/A No. 5:19-cv-084-DCR, 2019 WL 1103391 (E.D. Ky. March 8, 2019) (summarily dismissing petition despite potential adjusted release date before the Act's effective date). III. Conclusion and Recommendation
Based on the plain language of the Act and the apparent consensus among jurisdictions, the undersigned recommends dismissing the petition without service of process and without prejudice.
IT IS SO RECOMMENDED. April 24, 2019
Columbia, South Carolina
/s/
Shiva V. Hodges
United States Magistrate Judge
The parties are directed to note the important information in the attached
"Notice of Right to File Objections to Report and Recommendation."
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. "[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must 'only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'" Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
901 Richland Street
Columbia, South Carolina 29201
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).