Opinion
Civil Action 3:24-CV-85 (GROH)
10-03-2024
AQUILLA BROWN, Petitioner, v. H. L. RAY, Respondent.
REPORT AND RECOMMENDATION
ROBERT W. TRUMBLE UNITED STATES MAGISTRATE JUDGE
I. INTRODUCTION
On July 12, 2024, the pro se Petitioner, a federal inmate who is incarcerated at Hazelton USP in Bruceton Mills, West Virginia, filed the above-styled petition for habeas corpus action pursuant to 28 U.S.C. § 2241. ECF No. 1. As relief, the Petitioner seeks an order which directs the BOP to award him 365 days of credit towards his projected release date, and grant him immediate release. ECF No. 1 at 9.
According to the Bureau of Prisons inmate locator, Petitioner's release date is May 13, 2025. https://www.bop.gov/inmateloc/.
ECF Numbers cited herein refer to case number 3:24-CV-85 unless otherwise noted.
The matter is now before the undersigned United States Magistrate Judge for a Report and Recommendation to the District Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and LR PL P 2. For the reasons set forth below, the undersigned recommends that the petition be denied and dismissed with prejudice.
II. PROCECURAL HISTORY
A. Conviction and Sentence in the Eastern District of North Carolina
All CM/ECF references in Section II.A., unless otherwise noted, refer to entries in the docket of Criminal Action No. 5:17-CR-200, from the Eastern District of North Carolina, available on PACER. Philips v. Pitt Cnty. Mem. Hosp., 572 F.3d 176, 180 (4th Cir. 2009) (Courts “may properly take judicial notice of public record); Colonial Penns. Ins. Co. v. Coil, 887 F.2d 1236, 1239 (4th Cir. 1989) (“We note that ‘the most frequent use of judicial notice is in noticing the contents of court records.'”).
On June 27, 2017, an indictment was returned in the Eastern District of North Carolina which charged the Petitioner with being a felon who was knowingly in possession of a firearm and ammunition. ECF Nos. 1, 2. On February 15, 2018, the Petitioner entered a guilty plea to Count 1 of the Indictment. ECF Nos. 28, 29, 30. The Petitioner was sentenced to 105 months of incarceration on July 10, 2018. ECF Nos. 44, 47. An Amended Judgment was entered on August 8, 2018, which did not modify the length of incarceration. ECF No. 52.
B. Instant Habeas Corpus Petition
On July 12, 2024, the Petitioner filed his petition for the writ of habeas corpus pursuant to 28 U.S.C. § 2241. ECF No. 1. The petition alleges that the Petitioner's earned First Step Act Time Credits (“FTCs”) are being “withheld” from him, which if applied would merit his immediate release. ECF No. 1 at 1, 5-6, 9. The Petitioner asserts that the Federal Bureau of Prisons (“BOP”) in “unlawfully withholding days earned under the FSA by creating policy contrary to law. Id. at 5. Further, the Petitioner asserts that the BOP has erected barriers and extra requirements which prevent him from “using [his] days [he has] earned.” Id.
The Petitioner asserts that the BOP does not have the power to “add layers” to the requirements under law. Id. at 5-6. According to the Petitioner, the BOP enacted Policy Statement 5410.01 and regulation at 28 C.F.R. § 523.44 which both overstep the authority granted by Congress to implement the First Step Act. Id. at 6. The Petitioner contests that the First Step Act authorized a difference between the earning of credits (“FTCs”), and the application of credits after the credits are earned. Id. As argued by the Petitioner, the law is silent as to the “application” of earned FTCs, and whether high risk or medium risk inmates are eligible for application of earned FTCs. Id. According to the Petitioner, the BOP has created policy which violates the First Step Act, and has used that policy to block the law from being implemented. Id. As relief, the Petitioner asks the Court to award him 365 days he has earned, and grant him immediate release. Id. at 9.
C. Respondent's Motion to Dismiss or for Summary Judgment
On July 26, 2024, the Respondent filed a Motion to Dismiss, or in the Alternative, Motion for Summary Judgment, along with a memorandum and exhibits in support thereof. ECF Nos. 7, 8, 8-1 through 8-4.
In the memorandum the Respondent cites to applicable statutes and regulations, including:
(1) 18 U.S.C. § 3621, entitled “Imprisonment of a convicted person” [ECF No. 8 at 5, 6, 11];
(2) 18 U.S.C. § 3622, entitled “Temporary release of a prisoner” [Id. at 11];
(3) 18 U.S.C. § 3623, entitled “Transfer of a prisoner to State authority” [Id. at 11];
(4) 18 U.S.C. § 3624, entitled “Release of a prisoner” [Id. at 11];
(5) 18 U.S.C. § 3625, entitled “Inapplicability of the Administrative Procedure Act” [Id. at 11-12];
(6) 18 U.S.C. § 3631, entitled “Duties of the Attorney General” [Id. at 5-7];
(7) 18 U.S.C. §3632, entitled “Development of risk and needs assessment system” [Id. at 5, 6, 9];
(8) 18 U.S.C. § 3633, entitled “Evidence-based recidivism reduction program and recommendations” [Id. at 6]; and
(9) 28 C.F.R. § 523.44, entitled “Application of FSA Time Credits” [Id. at 2, 8, 9]. The Respondent makes two arguments in support of the Motion to Dismiss, or Alternatively, for Summary Judgment. First, the Respondent contends that although the Petitioner is eligible to earn FSA credits, because his recidivism risk has consistently been assessed as high risk, he is currently precluded from having his earned credits applied toward prerelease custody or supervised release. ECF No. 8 at 10-11.
Second, citing to a case from the Ninth Circuit, and other district courts within the Fourth Circuit, the Respondent argues that the BOP's determination regarding the Petitioner's eligibility for application of FSA credit is not reviewable by this Court. Id. at 11-12. The Respondent further argues that 18 U.S.C. § 3625 supports the conclusion that “Congress' intentional placement of the eligibility determination aspect of the First Step Act in § 3624, where it is not reviewable under the Administrative Procedure Act,speaks to the intent of Congress for the BOP to exercise discretion in making such determinations.” ECF No. 8 at 11-12, citing to Nevel v. R. Brown, 5:23-CV-285 (N.D. W.Va. Oct. 27, 2023), ECF Nos. 19, 22, Report and Recommendation adopted November 13, 2023.
The plain language of 18 U.S.C. § 3625, entitled “Inapplicability of the Administrative Procedure Act” states, “[t]he provisions of sections 554 and 555 and 701 through 706 of title 5, United States Code, do not apply to the making of any determination, decision, or order under this subchapter.”
The exhibits attached to the memorandum are: (1) “Declaration of Phillip Sands” a case manager at USP Hazelton who states that the Petitioner is eligible to earn FTCs, but “has consistently been assessed as a high risk of recidivism” under the Prisoner Assessment Tool Targeting Estimated Risk and Needs (“PATTERN”) [ECF No. 8-1]; (2) a “Public Information Inmate Data” sheet for the Petitioner dated July 18, 2024, which lists a projected release date of May 13, 2025, and a home detention eligibility date of November 13, 2024 [ECF No. 8-2]; (3) an “Inmate Profile” dated July 18, 2024, which lists a First Step Act recidivism risk of high on May 29, 2024 [ECF No. 8-3 at 1]; and (4) an “FSA Recidivism Risk Assessment (PATTERN 01.03.00),” which lists the Petitioner as having a consistent assessment of a high risk of recidivism from December 21, 2018, through the present [ECF No. 8-4 at 4-5].
D. Petitioner's Response in Opposition
The Petitioner filed a Response in Opposition to the Motion to Dismiss, or in the Alternative, Motion for Summary Judgment on August 19, 2024. ECF No. 13. In his Response, the Petitioner contends that the BOP “is exceeding [its] statutory authority because [its] interpretation of the First Step Act of 2018 is in conflict with the plain language of the law.” Id. at 1. Further, the Petitioner asserts that the Respondent's motion to dismiss or for summary judgment “makes no procedural sense when [a] district court is asked to undertake judicial review of agency action.” Id. at 2. Consistent with the claims in his petition, the Petitioner asserts that the First Step Act “does not state anywhere that if [an] inmate has a high or medium risk recidivism rate” that earned days cannot be applied toward release. Id.
According to the Petitioner, when federal agencies, including the BOP, “make law,” they must follow the rulemaking procedure contained in the Administrative Procedure Act, and “cannot articulate new princip[les] through adjudication if it would be [an] abuse of discretion or would circumvent [the] APA's requirement. Id., citing Union Flights, Inc. v. Administrator, Federal Aviation Admin., 957 F.2d 685, 688 (9th Cir. 1992). The Petitioner asserts that the plain language of the FSA “does not suggest any such limitations described in [§] 3624(g). Therefore, [§] 3624(g) is [an] enforceable legislative rule so the APA applies.” Id.
As relief, the Petitioner asks that:
The reviewing court shall
1) Compel agency action unlawfully withheld or unreasonably delayed; and
2) Hold unlawful and set aside agency action, findings and conclusions found to be-
A) arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with law;
B) contrary to constitutional right, power, privilege, or immunity;
C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right[;]
D) without observance of procedure required by law[;]
E) unsupported by substantial evidence in a case subject to section[s] 556 and 557 of this title (5 USC §§ 556 and 557) or otherwise reviewed on the record of an agency hearing provided by statute; or
F) unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court.ECF No. 13 at 3-4.
E. Respondent's Reply
The Respondent filed a reply on September 3, 2024. ECF No. 14. Therein the Respondent contends that even if the Petitioner's claims that this Court has original jurisdiction to perform a “Right of Review,” and to “decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action,” are applicable, the outcome does not change. Id. at 1. The Respondent asserts that the Petitioner's PATTERN score resulting in a high recidivism risk, “precludes the application of FSA credits pursuant to 18 U.S.C.
§ 3624(g) and 28 C.F.R. § 523.44.” Id. at 2. Further, the Respondent explains the fifteen variables that the PATTERN tool considers, and cites to 18 U.S.C. § 3624(g) which “sets forth the standard for an inmate to have any FSA credits earned applied to either prerelease custody or towards supervised release.” Id.
That subsection provides that among other requirements, a prisoner is eligible to earn credits, if the inmate, “has shown through the periodic risk reassessments a demonstrated recidivism risk reduction or has maintained a minimum or low recidivism risk, during the prisoner's term of imprisonment.” ECF No. 14 at 3, citing 18 U.S.C. § 3624 (g)(1)(B).
The Respondent asserts that the Petitioner was “found eligible to earn FSA credits on January 8, 2021,” but that eligibility does not automatically entitle the Petitioner to apply those earned time credits. ECF No. 14 at 3. Rather, the application of earned time credits depends on other factors, including the Petitioner's PATTERN score, which determined that he has a high risk of recidivism. Id.
Further, the Respondent reasserts that “18 U.S.C. § 3625 precludes judicial review of any BOP ‘adjudication' that arises under 18 U.S.C. §§ 3621-3625.” Id. at 4. The Respondent concludes that because the Petitioner is not eligible to apply his time credits earned under the First Step Act, the petition should be denied and dismissed. Id. at 5, quoting Nevel, 5:23-CV-285 (N.D. W.Va. Oct. 27, 2023), ECF No. 19 at 13.
II. LEGAL STANDARD
A. Review of Petitions for Relief
Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and the Court's Local Rules of Prisoner Litigation Procedure, this Court is authorized to review such petitions for relief and submit findings and recommendations to the District Court. This Court is charged with screening Petitioner's case to determine if “it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court.” Rule 4, Rules Governing Section 2254 Cases in the U.S. District Courts; see also Rule 1(b) Rules Governing Section 2254 Cases in the U.S. District Courts (a district court may apply these rules to a habeas corpus petition not filed pursuant to § 2254).
B. Post-Conviction Remedies and Relief Including Habeas Corpus Petitions Filed Pursuant to 28 U.S.C. § 2241
Prisoners seeking to challenge the validity of their convictions or their sentences are required to proceed under § 2255 in the district court of conviction. By contrast, a petition for writ of habeas corpus, pursuant to § 2241, is intended to address the execution of a sentence, rather than its validity, and is to be filed in the district where the prisoner is incarcerated. “As we noted in O'Brien [v. Moore, 395 F.3d 499, 505 (4th Cir. 2005)], the ‘essence of habeas corpus is an attack by a person in custody upon the legality of that custody' and ‘the traditional function of the writ is to secure release from illegal custody.'” Obando-Segura v. Garland, 999 F.3d 190, 194 (4th Cir. 2021), quoting Preiser v. Rodriguez, 411 U.S. 475, 484, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973). Accordingly, a petition filed pursuant to § 2241 is the appropriate method for a prisoner to challenge the fact and length of his confinement, but generally not the conditions of that confinement. Preiser, 411 U.S. at 498 - 499. “[I]mmediate release or speedier release from [ ] confinement [is] the heart of habeas corpus.” Id. at 498.
C. Motions to Dismiss
Federal Rule of Civil Procedure 12(b)(6) permits dismissal of a case when a complaint fails to state a claim upon which relief can be granted. The Federal Rules of Civil Procedure require only, “‘a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to ‘give the defendant fair notice of what the ... claim is and the grounds upon which it rests.'” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Courts long have cited, “the accepted rule that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley, 355 U.S. at 45-46.
Plaintiff is proceeding pro se and therefore the Court must liberally construe his pleadings. Estelle v. Gamble, 429 U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520 - 1 (1972) (per curiam); Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197 (2007). Although a complaint need not contain detailed factual allegations, a plaintiff's obligation in pleading, “requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do....” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Accordingly, “[f]actual allegations must be enough to raise a right to relief above the speculative level,” to one that is “plausible on its face.” Id. at 555, 570. In Twombly, the Supreme Court found that, “because the plaintiffs [ ] have not nudged their claims across the line from conceivable to plausible, their complaint must be dismissed.” Id. at 570. Thus, to survive a motion to dismiss, a plaintiff must state a plausible claim in his complaint which is based on cognizable legal authority and includes more than conclusory or speculative factual allegations.
“[O]nly a complaint that states a plausible claim for relief survives a motion to dismiss.” Ashcroft v. Iqbal, 556 U.S. 662, 679, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). Thus, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice,” because courts are not bound to accept as true a legal conclusion couched as a factual allegation. Id. at 678. “[Determining whether a complaint states a plausible claim . . . [is] a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. at 679. Thus, a well-pleaded complaint must offer more than, “a sheer possibility that a defendant has acted unlawfully,” in order to meet the plausibility standard and survive dismissal for failure to state a claim. Id. at 678.
“A motion to dismiss under Rule 12(b)(6) tests the sufficiency of a complaint; importantly, it does not resolve contests surrounding facts, the merits of a claim, or the applicability of defenses.” Republican Party of North Carolina v. Martin, 980 F.2d 943, 952 (4th Cir. 1992) (citing 5A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1356 (1990)). In considering a motion to dismiss for failure to state a claim, a plaintiff's well-pleaded allegations are taken as true, and the complaint is viewed in the light most favorable to the plaintiff. Mylan Labs, Inc. v. Matkari, 7 F.3d1130, 1134 (4th Cir. 1993); see also Martin, 980 F.2d at 952.
D. Motions for Summary Judgment
Pursuant to Federal Rule of Civil Procedure 56(a), the Court shall grant summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” In applying the standard for summary judgment, the Court must review all the evidence in the light most favorable to the nonmoving party. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). However, “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
In Celotex, the Supreme Court held that the moving party bears the initial burden of informing the Court of the basis for the motion to, “demonstrate the absence of a genuine issue of material fact.” 477 U.S. at 323. Once “the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
“The movant has the burden of showing that there is no genuine issue of fact, but the plaintiff is not thereby relieved of his own burden of producing in turn evidence that would support a verdict.” Anderson, supra, at 256. Thus, the nonmoving party must present specific facts showing the existence of a genuine issue for trial, meaning that “a party opposing a properly supported motion for summary judgment may not rest upon mere allegations or denials of [the] pleading, but must set forth specific facts showing that there is a genuine issue for trial.” Id. The “mere existence of a scintilla of evidence” favoring the nonmoving party will not prevent the entry of summary judgment. Id. at 248.
To withstand such a motion, the nonmoving party must offer evidence from which a “fair-minded jury could return a verdict for the [party].” Id. “If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.” Felty v. Graves-Humphreys Co., 818 F.2d 1126, 1128 (4th Cir. 1987). Such evidence must consist of facts which are material, meaning that they create fair doubt rather than encourage mere speculation. Anderson, supra, at 248.
Summary judgment is proper only “[w]here the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party.” Matsushita, supra, at 587. “Where the record as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine issue for trial.'” Id. citing First Ntl. Bank of Ariz. v. Cities Service Co., 391 U.S. 253, 289, 88 S.Ct. 155, 1592 (1968). See Miller v. Fed. Deposit Ins. Corp., 906 F.2d 972, 974 (4th Cir. 1990). Although any permissible inferences to be drawn from the underlying facts must be viewed in the light most favorable to the party opposing the motion, where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, disposition by summary judgment is appropriate. Matsushita, supra, at 587-88. Anderson, supra, at 248-49.
III. ANALYSIS
A. Petitioner's Eligibility to Earn Time Credits is Separate from his Eligibility to Have Time Credits Applied toward Prerelease Custody or Supervised Release
Under 18 U.S.C. § 3632(d)(4)(A), “[a] prisoner, except for an ineligible prisoner under subparagraph (D), who successfully completes evidence-based recidivism reduction programming or productive activities, shall earn time credits” at a rate of “10 days of time credits for every 30 days of successful participation in evidence-based recidivism reduction programming or productive activities” with the possibility to earn an additional 5 days per 30 days of successful participation. 18 U.S.C. § 3632(d)(4)(A). Prisoners are ineligible to receive time credits if they are serving a sentence for a conviction under one of several provisions of law set forth in 18 U.S.C. § 3632(d)(4)(D). Under a separate provision, time credits earned are applied toward time in prerelease custody or supervised release. 18 U.S.C. § 3632(d)(4)(C).
As argued by the Respondent, there is a distinction between earning time credits and the application of time credits. The application of time credits to prerelease custody or supervised release is governed by 18 U.S.C. § 3624(g). Section 3624(g)(1) sets forth the criteria for eligibility:
(1) Eligible prisoners.--This subsection applies in the case of a prisoner (as such term is defined in section 3635) who
(A) has earned time credits under the risk and needs assessment system developed under subchapter D (referred to in this subsection as the “System”) in an amount that is equal to the remainder of the prisoner's imposed term of imprisonment;
(B) has shown through the periodic risk reassessments a demonstrated recidivism risk reduction or has maintained a minimum or low recidivism risk, during the prisoner's term of imprisonment;
(C) has had the remainder of the prisoner's imposed term of imprisonment computed under applicable law; and
(D)(i) in the case of a prisoner being placed in prerelease custody, the prisoner-
(I) has been determined under the System to be a minimum or low risk to recidivate pursuant to the last 2 reassessments of the prisoner; or
(II) has had a petition to be transferred to prerelease custody or supervised release approved by the warden of the prison, after the warden's determination that-
(aa) the prisoner would not be a danger to society if transferred to prerelease custody or supervised release;
(bb) the prisoner has made a good faith effort to lower
their recidivism risk through participation in recidivism reduction programs or productive activities; and
(cc) the prisoner is unlikely to recidivate; or
(ii) in the case of a prisoner being placed in supervised release, the prisoner has been determined under the System to be a minimum or low risk to recidivate pursuant to the last reassessment of the prisoner.18 U.S.C.A. § 3624(g)(1) (emphasis added). Thus, under 18 U.S.C. § 3632(d) a prisoner may be eligible under to earn and receive time credits, but not be eligible to have those credits applied under 18 U.S.C. § 3624(g)(1)(B). Assessments submitted by the Respondent reflect that the Petitioner has never achieved a minimum or low or recidivism risk, under 18 U.S.C. § 3624(g)(1)(B). Accordingly, the Petitioner is ineligible to have his credits applied. Because his recidivism level is “high,” 18 U.S.C. § 3624(g)(1) provides that the Petitioner is ineligible to have any earned credits applied towards prerelease custody or release to supervised release. While this seemingly contradictory interaction between eligibility to earn and receive credits and eligibility to apply those same credits is no doubt frustrating to prisoners trying to navigate the system, there is no contradiction between these sections.
Multiple district courts within the Fourth Circuit have held that a prisoner may be eligible under 18 U.S.C. § 3632(d) to earn and receive time credits, but may not be eligible to have those credits applied under 18 U.S.C. § 3624(g). See Rodriguez v. Brown, No. 5:23-CV-328, 2024 WL 482249, at *3 (N.D. W.Va. Jan. 12, 2024), report and recommendation adopted, No. 5:23-CV-328, 2024 WL 476972 (N.D. W.Va. Feb. 7, 2024) (“[T]he FSA expressly provides that while an inmate who has a PATTERN score of medium or high risk of recidivism is eligible to complete EBRR programs and PAs, the successfully completed programs and PAs are not applied towards the inmate's time credits until she has received a minimum or low risk PATTERN score for two consecutive assessments for prerelease custody and a minimum or low risk PATTERN score for the last reassessment for supervised released.”); Bennett v. Warden, FCI Beckley, No. 5:23-CV-00477, 2024 WL 3433952, at *3 (S.D. W.Va. June 18, 2024), report and recommendation adopted, No. 5:23-CV-00477, 2024 WL 3432619 (S.D. W.Va. July 16, 2024) (“The recidivism risk level, in turn, determines whether the prisoner is eligible to apply his earned FSA time credits.”); Faheem Pasha, Petitioner v. C. Carter, Warden, Respondent, No. CV DLB-23-2686, 2024 WL 4264904, at *3 (D. Md. Sept. 20, 2024) (“Application of earned time credits is not automatic. It depends on a prisoner's assessed risk of recidivism.”); King v. Joseph, No. CV22301847HMHMGB, 2023 WL 6626630, at *4 (D.S.C. Sept. 14, 2023), report and recommendation adopted, No. 2:23-1847-HMH-MGB, 2023 WL 6626160 (D.S.C. Oct. 11, 2023) (“Under the First Step Act, eligible inmates with all recidivism risk scores may earn time credits; however, only those inmates with ‘low' and ‘minimum' risk scores can have the credits applied to prerelease custody or early transfer to supervised release. See 28 C.F.R. § 523.42 (outlining the earning of First Step Act Time Credits); see also 28 C.F.R. § 523.44(c)(1), (d)(1).”)
B. The BOP's Determination of a Prisoner's eligibility to Apply Earned Time Credits is Not Reviewable
To the extent that the Petitioner challenges the BOP's determination of his eligibility to apply his earned time credits toward prerelease custody or supervised release, that determination is not reviewable. Although the petition does not specifically challenge the determination of his PATTERN Score, he asserts that the BOP is “putting barriers and extra requirements” to prevent the application of his earned time credits. ECF No. 1 at 5. Insofar as petitioner is challenging the BOP's determination of his eligibility to apply time credits under 18 U.S.C. § 3624(g)(1), the undersigned agrees with the Respondent that such a determination is not reviewable by this Court. As the Respondent argues, 18 U.S.C. § 3625 “precludes review” under the Administrative Procedure Act. ECF No. 8 at 11. Further, as stated in note 4 herein, “[t]he provisions of sections 554 and 555 through 701 and 706 of title 5, United States Code, do not apply to the making of any determination, decision, or order under this subchapter.” Citing to Nevel, 5:23-CV-285 (N.D. W.Va. Oct. 27, 2023), ECF No. 19 at 12, the Respondent argues that “Congress' intentional placement of the eligibility determination aspect of the First Step Act in § 3624, where it is not reviewable under the Administrative Procedure Act, speaks to the intent of Congress for the BOP to exercise discretion in making such determinations.” ECF No. 8 at 12. The undersigned agrees that pursuant to the plain language of § 3625, individual determinations made under § 3624 are not reviewable under the Administrative Procedures Act.
See Welch v. Heckard, No. 5:23-CV-00347, 2023 WL 6885005, at *4 (S.D. W.Va. Sept. 19, 2023), report and recommendation adopted, No. 5:23-CV-00347, 2023 WL 6882684 (S.D. W.Va. Oct. 18, 2023) (“If a prisoner does not have a minimum or low recidivism risk level, he must petition the Warden for individual approval of the application of his earned time credits.... Because [the [prisoner] is at a high recidivism risk level and has not had a petition to apply time credits approved by the Warden, he is not eligible for the application of his FSA time credits.”); Morales v. Brewer, No. 2:22-CV-2207 AC P, 2023 WL 3626315, at *2 (E.D. Cal. May 24, 2023), report and recommendation adopted, No. 222-CV-02207, 2023 WL 4535042 (E.D. Cal. July 13, 2023) (“The discretionary decision whether to release a prisoner into prerelease custody or supervised release under § 3624(g) is therefore not reviewable by this court”).
Because the Petitioner is not eligible to apply time credits earned under the First Step Act, the undersigned finds that his petition should be dismissed with prejudice.
V. RECOMMENDATION
For the foregoing reasons, the undersigned RECOMMENDS that the petition for habeas corpus [ECF No. 1] filed on July 12, 2024, be DENIED and dismissed with prejudice. It is further RECOMMENDED that the Respondent's Motion to Dismiss, or in the Alternative, Motion for Summary Judgment [ECF No. 7] be GRANTED.
Within fourteen (14) days after being served with a copy of this Recommendation, any party may file with the Clerk of the Court, specific written objections, identifying the portions of the Report and Recommendation to which objection is made, and the basis of such objection. A copy of such objections should also be submitted to the Honorable Gina M. Groh, United States District Judge. Objections shall not exceed ten (10) typewritten pages or twenty (20) handwritten pages, including exhibits, unless accompanied by a motion for leave to exceed the page limitation, consistent with LR PL P 12.
Failure to file written objections as set forth above shall constitute a waiver of de novo review by the District Court and a waiver of appellate review by the Circuit Court of Appeals. Snyder v. Ridenour, 889 F.2d 1363 (4th Cir. 1989); 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).
The Clerk of the Court is directed to mail a copy of this Report and Recommendation to the pro se Petitioner by certified mail, return receipt requested, and to all counsel of record by electronic means.