Opinion
C. A. 1:21-418-JFA-SVH
06-16-2021
Tyree Craig Jones, #26123-058, Petitioner, v. Warden Phelps, Respondent.
REPORT AND RECOMMENDATION
Shiva V. Hodges, United States Magistrate Judge
Tyree Craig Jones (“Petitioner”), proceeding pro se, filed this action seeking habeas corpus relief pursuant to 28 U.S.C. § 2241. This matter is before the court pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Civ. Rule 73.02(B)(2)(c) (D.S.C.) for a Report and Recommendation on Respondent's motion to dismiss, or in the alternative, for summary judgment. [ECF No. 12]. Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Petitioner of the motion for summary judgment and dismissal procedures and the possible consequences if he failed to respond adequately to Respondent's motion. [ECF No. 13]. Petitioner filed a response on June 7, 2021. [ECF No. 19]. For the reasons that follow, the undersigned recommends the district judge grant Respondent's motion.
I. Factual and Procedural Background
Petitioner is a federal inmate incarcerated at the Federal Correctional Institution in Edgefield, South Carolina. [See ECF No. 1 at 1]. He is serving an 85-month sentence imposed by the United States District Court for the Western District of North Carolina for conspiracy to commit health care fraud. [See ECF No. 1 at 1-2, ECF No. 7 at 2, ECF No. 12 at 1]. Petitioner argues the Federal Bureau of Prisons (“BOP”) has failed to apply his earned time credits, as provided by the First Step Act, 18 U.S.C. § 3632(d)(4)(A), for certain training and activities. Petitioner argues his projected release date is August 4, 2022, but should be November 2, 2021, taking into account he credits he has earned, presumably also entitling him to immediate transfer to pre-release custody. [See ECF No. 1 at 1-2].
Plaintiff has filed a petition and an amended petition, utilizing the court's standard form. [ECF Nos. 1, 7]. The undersigned has reviewed both in preparing this report and recommendation.
The Director of the BOP has the authority to “place a prisoner in home confinement for the shorter of 10 percent of the term of imprisonment of that prisoner or 6 months.” 18 U.S.C. § 3624(c)(2).
Respondent agrees Petitioner has earned time credits under the First Step Act:
Jones is currently identified as eligible to earn FSA time credits and is identified as low risk recidivism level for FSA purposes. His needs were initially assessed in December 2019, and have been reassessed on a number of occasions since then. His Education
Data Transcript shows his completed programs and activities, with one program completed after January 2020.[ECF No. 12 at 9 n.6 (citations omitted); see also ECF No. 12-1 at 108].
Respondent indicates Petitioner receives credits under the First Step Act only for the program he completed after January 2020. [See ECF No. 12 at 9 n.6; see also ECF No. 12-1 at 154]. However, this position appears at odds with the plain language of the relevant statute that provides that an inmate may not earn credits for any evidence-based recidivism reduction program that was completed prior to the date of the enactment of the First Step Act, December 21, 2018. See, e.g., Hare v. Ortiz, C/A No. 18-588-1(RMB), 2021 WL 391280, at *7 (D.N.J. Feb. 4, 2021) (holding that if a petitioner successfully completed a qualifying program or activity on or after December 21, 2018, he is entitled to earned time credits, rejecting BOP's argument otherwise).
Notwithstanding, Respondent argues Petitioner failed to exhaust his administrative remedies, warranting dismissal of his petition, and that the BOP has no obligation to apply earned time credits under the terms of the First Step Act until January 15, 2022.
II. Discussion
A. Standard of Review for Summary Judgment
Summary judgment is appropriate “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.” Fed.R.Civ.P. 56(a). “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “[S]ummary judgment will not lie if the dispute about a material fact is ‘genuine,' that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. At the summary judgment stage, the court must view the evidence in the light most favorable to the non-moving party and draw all justifiable inferences in its favor. Id. at 255. 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.” Id. at 248.
The moving party has the burden of proving that summary judgment is appropriate. Once the moving party makes this showing, however, the opposing party may not rest upon mere allegations or denials, but rather must, by affidavits or other means permitted by the Rule, set forth specific facts showing that there is a genuine issue for trial. See Fed. R. Civ. P. 56(e).
B. Habeas Corpus Standard of Review
Under established local procedure in this judicial district, this petition has been carefully reviewed 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. 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).
The Rules Governing Section 2254 are applicable to habeas actions brought under § 2241. See Rule 1(b).
C. Analysis
1. Exhaustion of Administrative Remedies
Petitioner is required to exhaust his administrative remedies within the BOP before submitting a § 2241 petition in this case. Although § 2241 does not contain a statutory exhaustion requirement, courts consistently require prisoners to exhaust their administrative remedies prior to seeking habeas review under § 2241. See Braden v. 30th Judicial Circuit Court, 410 U.S. 484, 490-91 (1973) (requiring exhaustion in 28 U.S.C. § 2241 matter); McClung v. Shearin, 90 Fed.Appx. 444, 445 (4th Cir. 2004) (“Federal prisoners must exhaust their administrative remedies prior to filing § 2241 petitions. Failure to exhaust may only be excused upon a showing of cause and prejudice.”) (citations omitted). The requirement of exhaustion allows prison officials to develop a factual record and “an opportunity to resolve disputes concerning the exercise of their responsibilities before being haled into court.” Jones v. Bock, 549 U.S. 199, 204 (2007).
The BOP has a four-step administrative grievance process, including an informal resolution process. See 28 C.F.R. §§ 542.10 et seq.; BOP Program Statement 1330.18, Administrative Remedy Program. An inmate may complain about any aspect of his confinement by first seeking to resolve the matter informally at the institution. 28 C.F.R. § 542.13. If the matter cannot be resolved informally, the inmate may file a formal written complaint to the warden within twenty calendar days after the condition at issue arose. 28 C.F.R. § 542.14. The matter is investigated, and the inmate then receives a written response. See Id. If dissatisfied with that response, the inmate may appeal to the Regional Director within twenty days. 28 C.F.R. § 542.15(a). If dissatisfied with the regional response, the inmate may appeal to the Central Office within thirty days. Id. Appeal to the Central Office is the final level of agency review. Id. Thus, a claim has not been administratively exhausted until it has been filed with the Central Office. See Id. If, during this process, the inmate does not receive a response to his form in the allotted time frame, including any extensions, the inmate may consider his request denied and appeal to the next level. 28 C.F.R. § 542.18.
Petitioner does not dispute that he failed to exhaust his administrative remedies, but argues he is exempt from the exhaustion requirement because, in part, “given the Petitioner's proximity to his release date and the lengthy duration of the formal administrative remedy process, the pursuit of the normal BOP remedy process would be futile.” [ECF No. 1 at 10].
Although the parties dispute how far in the administrative grievance process Petitioner progressed, both parties appear to agree Petitioner did not exhaust the entire process. [See ECF No. 1 at 10, ECF No. 12 at 5].
This court has held that “[f]or petitioners seeking habeas relief, the exhaustion requirement may be excused under certain circumstances, such as by showing futility.” McCu lough v. Bureau of Prisons, C/A No. 5:19-639-RMG, 2019 WL 1767393, at *2 (D.S.C. Apr. 22, 2019) (citation omitted) (dismissing petition without prejudice for failure to exhaust administrative remedies where there was no showing of irreparable harm, such as a petitioner remaining “incarcerated past his projected release date under the First Step Act”); see also Coleman v. U.S. Parole Comm'n, 644 Fed.Appx. 159, 162 (3d Cir. 2016) (stating that “exhaustion is not required with regard to claims which turn only on statutory construction”); Gambino v. Morris, 134 F.3d 156, 171 (3d Cir. 1998) (Roth, J., concurring) (finding exhaustion excused upon petitioner showing futility); Wright v. United States, C/A No. C19-5254-RBL-TLF, 2019 WL 2746630, at *7 (W.D. Wash. June 5, 2019) (“Under the circumstances of this case, however, requiring Mr. Wright to exhaust would appear to be futile if the BOP has taken the position, and notified its inmate population, that the retroactive amendment to the good time credit statute [in the First Step Act] ‘is not effective immediately.' To the extent the BOP has predetermined the issue, and made it clear that any request Mr. Wright makes to the BOP for calculation of good time credits under the amended statute will be denied, there is no available administrative remedy. Under these circumstances, it would be futile for Mr. Wright to attempt to exhaust his administrative remedies.”), report and recommendation adopted, C/A No. C19-5254RBL, 2019 WL 2743636 (W.D. Wash. July 1, 2019); Rashid Bradley v. Warden Stephen Spaulding, C/A No. 3:20-2294, 2021 WL 1964598, at *2 (M.D. Pa. May 17, 2021) (dismissing for failure to exhaust petitioner requesting application of earned time credits under the First Step Act where “Petitioner has not alleged facts that would permit a finding that exhaustion would have been futile, or that requiring exhaustion would subject him to irreparable injury”); Nelson v. Cox, C/A No. 4:20-04199-KES, 2021 WL 1221178, at *2 (D.S.D. Apr. 1, 2021) (holding petitioner seeking application of earned time credits under the First Step Act need not exhaust administrative remedies where he “has alleged facts to show that requiring him to exhaust his administrative remedies before coming into court would cause him irreparable harm because he is allegedly already entitled to be released from prison.”).
Additionally, the “court may skip over the exhaustion issue if it is easier to deny (not grant, of course, but deny) the petition on the merits without reaching the exhaustion question.” Porter v. Warden of FCI Edgefield, C/A No. 9:20-01829-DCC-MHC, 2020 WL 8271580, at *3 (D.S.C. Oct. 26, 2020) (citations omitted), report and recommendation adopted, C/A No. 9:20-01829-DCC, 2021 WL 274308 (D.S.C. Jan. 27, 2021); cf. Bacon v. Lee, 225 F.3d 470, 477 (4th Cir. 2000) (“Because we ultimately conclude that the assertedly defaulted claims are without merit, we will exercise our prerogative to decide Bacon's claims on the merits rather than on grounds of procedural default.”).
Petitioner appears to argue he is entitled to be immediately transferred from BOP custody to pre-release custody, which is arguably an allegation of irreparable harm. However, because Petitioner's underlying claim seeking application of earned time credits under the First Step Act is without merit, the court need not resolve the exhaustion issue.
Except as noted above, Respondent does not address Petitioner's argument that he is owed at least 277 days of earned time credits. Respondent does note that time credits may be reduced if an inmate engages in misconduct or violates prison rules or program requirements, also noting Petitioner has one disciplinary infractions, but states that “[b]ecause the BOP's policy implementation plan is not yet final, how an inmate's discipline will affect any earned time credit is uncertain.” [ECF No. 12 at 8 n.4].
This case stands in contrast to others addressed by this court and cited by Respondent [see ECF No. 12 at 3-7, 12-13], holding exhaustion of administrative remedies was required when a petitioner seeks application of earned time credits under the First Step Act. Except for one, these cases do not address claims that the petitioners were entitled to immediate transfer to prerelease custody. See, e.g., Jesus Vazquez, Petitioner, v. Stevie Knight, Warden, Respondent, C/A No. 8:21-0314-RMG-JDA, 2021 WL 1821984, at *1 (D.S.C. Mar. 18, 2021) (noting petitioner's argument that with the credits due to him under the FSA, “his new release date should be May 7, 2025”), report and recommendation adopted sub nom. Vazquez v. Knight, C/A No. 8:21-0314-RMG, 2021 WL 1625002 (D.S.C. Apr. 27, 2021); Mero v. Phelps, C/A No. 4:20-3615-MGL-TER, 2020 WL 7774378, at *2 (D.S.C. Nov. 2, 2020), report and recommendation adopted, C/A No. 4:20-3615-MGL, 2020 WL 7769784 (D.S.C. Dec. 30, 2020); but see James L. Wright, Petitioner, v. Warden of Edgefield FCI, Respondent, C/A No. 8:21-0388-JD-JDA, 2021 WL 2270011, at *4 (D.S.C. Mar. 31, 2021), report and recommendation adopted sub nom. Wright v. Warden of Edgefield FCI, C/A No. 8:21-0388-JD, 2021 WL 2269960 (D.S.C. June 2, 2021) (dismissing habeas petition requesting earned time credits under the First Step Act for failure to exhaust administrative remedies where the petitioner argued he was entitled to immediate transfer to pre-release custody).
2. Application of Earned Time Credits
The First Step Act initiated a system that allows eligible prisoners to earn time credits for successfully completing “evidence-based recidivism reduction programming or productive activities.” 18 U.S.C. § 3632(d)(4)(A). More specifically, a prisoner will “earn 10 days of time credits for every 30 days of successful participation in” qualifying programming or activities. 18 U.S.C. § 3632(d)(4)(A)(i). In addition, a prisoner, who is determined “to be at a minimum or low risk for recidivating” may “earn an additional 5 days of time credits for every 30 days of successful participation in” qualifying programming or activities, if he has not increased his risk of recidivism over two consecutive assessments. 18 U.S.C. § 3632(d)(4)(A)(ii). Additionally, a “prisoner may not earn time credits under this paragraph for an evidence-based recidivism reduction program that the prisoner successfully completed prior to the date of enactment of this subchapter, ” December 21, 2018. 18 U.S.C. 3632(d)(4)(B).
However, these programs did not go into effect immediately. Pursuant to 18 U.S.C.A. § 3632(a), the Attorney General, “in consultation with the Independent Review Committee authorized by the First Step Act of 2018, ” was required to develop within 210 days after the First Step Act was enacted the Risk and Needs Assessment System, which the BOP was to use as a guide to implement the programs. The Attorney General published this system, entitled “Prisoner Assessment Tool Targeting Estimated Risk and Needs” (“PATTERN”), on July 19, 2019.
Following the publication, BOP then had 180 days, or until January 15, 2020, to begin to implement PATTERN, completing inmate assessments and beginning to assign prisoners to appropriate evidence-based recidivism reduction programs. 18 U.S.C. § 3621(h)(1)(A). Within the 180-day time period, the BOP was also to “begin to expand the effective evidence-based recidivism reduction programs and productive activities it offers and add any new evidence-based recidivism programs and productive activities necessary to effectively implement the System[, ]” as well as to “begin to implement the other risk and needs assessment tools necessary to effectively implement the System over time, while prisoners are participating in and completing the effective evidence-based recidivism reduction programs and productive activities.” 18 U.S.C. § 3621(h)(1)(B) & (C).
The relevant statutes also provide for a phase-in period regarding the above tasks:
(2) Phase-in.-In order to carry out paragraph (1), so that every prisoner has the opportunity to participate in and complete the type and amount of evidence-based recidivism reduction programs or productive activities they need, and be reassessed for recidivism risk as necessary to effectively implement the System, the Bureau of Prisons shall-
(A) provide such evidence-based recidivism reduction programs and productive activities for all prisoners before the date that is 2 years after the date on which the Bureau of Prisons completes a risk and needs assessment for each prisoner under paragraph (1)(a); and
(B) develop and validate the risk and needs assessment tool to be used in the reassessments of risk of recidivism, while prisoners are participating in and completing evidence-based recidivism reduction programs and productive activities.
(3) Priority during phase-in.-During the 2-year period described in paragraph 2(a), the priority for such programs and activities sha l be accorded based on a prisoner's proximity to release date.
(4) Preliminary expansion of evidence-based recidivism reduction programs and authority to use incentives.- Beginning on the date of enactment of this subsection, the Bureau of Prisons may begin to expand any evidence-based
recidivism reduction programs and productive activities that exist at a prison as of such date, and may offer to prisoners who successfully participate in such programs and activities the incentives and rewards described in subchapter D.18 U.S.C. § 3621(h) (emphasis added). “Thus, according to § 3621(h), the BOP was required to create the risk and needs assessment system by January 15, 2020, begin implementing it on that date, and with full implementation complete on January 15, 2022.” Goodman v. Ortiz, C/A No. 20-7582 (RMB), 2020 WL 5015613, at *4 (D.N.J. Aug. 25, 2020).
The key issue before the court is whether the BOP has an obligation, under the terms of the First Step Act, to apply earned time credits prior to January 15, 2022, where the record indicates Petitioner may have earned sufficient credits to have already been transferred to pre-release custody.
To resolve this issue, “[w]e begin, as always, with the text of the statute.” Permanent Mission of India to the United Nations v. City of New York, 551 U.S. 193, 197 (2007). There appears no dispute that the BOP has until January 15, 2022, to fully implement PATTERN, including the application of the earned time credits. It is also undisputed that the relevant statute provides that BOP has the authority “to offer to prisoners” these “incentives and rewards” prior to this date. Finally, Congress has directed during the phase-in period-the period we are currently in-“the priority for such programs and activities shall be accorded based on a prisoner's proximity to release date”; thus, the BOP is required prior January 15, 2022, to provide qualifying programs and activities to prisoners, in particular to prisoners nearing their release date.
However, nothing stated in the above statutes directs the BOP to award earned time credits prior to January 15, 2022. As stated by Respondent:
The statute's use of “may” makes the BOP's decision to offer prisoners incentives and awards (including awarding time credits) before January 15, 2022 purely discretionary. The BOP has determined that eligible inmates who successfully complete assigned evidence-based recidivism reduction programs and productive activities authorized by the BOP on or after January 15, 2020, are eligible for time credit. However, the BOP is not obligated to award time credits to those who successfully complete the assigned programs and activities until January 15, 2022. To date, the BOP has not exercised its discretion to award credits before then.[ECF No. 12 at 10-11 (citations omitted, emphasis in original)].
Petitioner cites to one court in the District of New Jersey that has held otherwise. [See ECF No. 1 at 9]. In Goodman, 2020 WL 5015613, at *1, the petitioner argued the BOP failed to apply earned time credits based on his participation in a training program, resulting in his incarceration after what should have been his recalculated release date. The BOP argued the petitioner had not exhausted his administrative remedies and that its obligation to apply earned time credits did not take effect until January 15, 2022, the end of the phase-in period. Id. at *1, 2, 4. The court rejected the BOP's argument that the petitioner had failed to exhaust his administrative remedies, finding (1) the case “present[ed] a narrow dispute of statutory construction which is exempt from the exhaustion requirement” and (2) excusing the exhaustion requirement as futile because habeas relief should be granted. Id. at *3 (citing Coleman, 644 Fed.Appx. at 162 (“exhaustion is not required with regard to claims which turn only on statutory construction”); Gambino, 134 F.3d at 171 (“exhaustion is not required when the petitioner demonstrates that it is futile”)).
The petitioner argued that if the earned time credits had been appropriately applied, he would have been eligible for release on July 5, 2020, and the respondent did not refute his argument. Goodman, 2020 WL 5015613, at *1, 2. Here, although Respondent has offered limited refutation to Petitioner's argument that he is entitled to 277 days of earned-time credit, as discussed, Respondent does dispute the number of qualifying programs Petitioner has completed.
The court found “[t]he BOP's position that a prisoner can complete the PATTERN program before January 15, 2022 with no benefit to the prisoner is contrary to the statutory language, not to mention the unfairness of such a result” and granted habeas relief to the petitioner. Id. at *6. It explained:
The Court finds no evidence in the statutory framework for delaying application of incentives earned by all prisoners during the phase-in program until January 15, 2022, the final date when BOP must complete the phase-in with respect to “all prisoners.” See § 3621(h)(2)(A). Even the use of the words “all prisoners” indicates that all prisoners must be afforded the PATTERN program but does not exclude that some prisoners will participate in, earn incentives and complete the program before the end of the phase-in period. Indeed, the Attorney General's January 15, 2020 memo and BOP's “Frequently Asked Questions” describing the PATTERN program incentives are consistent with this interpretation. The ordinary meaning of “phase-in” combined with analysis of the statutory framework of § 3621(h) unambiguously supports the conclusion that the BOP must gradually implement the risk recidivism program, including the priority application of incentives to prisoners whose release dates are nearer, such as Petitioner.Id.; see also Hare, 2021 WL 391280, at *2 (“In Goodman, this Court rejected the BOP's statutory interpretation that would delay application of Time Credits to all prisoners during the phase-in program until January 15, 2022, the final date when BOP must complete the phase-in with respect to ‘all prisoners.'”).
The court cited the Attorney General's statement, which provided:
Beginning today, inmates will have even greater incentive to participate in evidence-based programs that prepare them for productive lives after incarceration . . . As of January 15, 2020, inmates will be assigned to participate in [Programs] based on an initial needs assessment . . . Participation and completion of those assigned programs and activities can lead to placement in prerelease custody or a 12-month sentence reduction under the First Step Act.Goodman, 2020 WL 5015613, at *5 (citing Reply Brief at 7-8).
Most courts have rejected the reasoning of Goodman, as discussed more below, but not all:
The court agrees with the Goodman decision insofar as it went. That court held that merely because Congress gave the BOP until January 15, 2022, to “phase in” the FSA, this did not mean that in every case the BOP could deny FSA credits and thereby deny earlier release to all qualifying inmates until that magic date. The court held Congress did not deem January 15, 2022, to be the “effective date” of the FSA, but rather the latest date by which the BOP was required to fully implement the FSA. In addition, Congress directed that inmates closest to their statutory release date should be given priority in participation in FSA-qualified programming so that they would be given first opportunity to earn FSA credits and secure their earlier release.Workman v. Cox, C/A No. 4:20-04197-LLP, 2021 WL 1080396, at *2 (D.S.D. Jan. 13, 2021) (citations omitted) (recommending dismissal for failure to exhaust administrative remedies, noting petitioner would not be eligible for immediate release and that respondent disputed entitlement to all the credits claimed), report and recommendation adopted, C/A No. 20-4197, 2021 WL 1060205 (D.S.D. Mar. 18, 2021).
Although the Goodman court's invocation of unfairness is understandable, both the Goodman and Workman courts found a Congressional mandate that does not exist. These courts conflated a petitioner's participation in qualifying programming and activities and earning time credits with the BOP awarding time credits. However, the relevant statutes do not direct a priority award of incentives to prisoners whose release dates are nearer, just a priority availability of programs. See 18 U.S.C.A. § 3621(h)(2)(A) & (3) (directing the BOP to provide qualifying programs and activities during the 2-year phase-in period and providing that priority for these qualifying programs and activities “shall be accorded based on a prisoner's proximity to release date”). These provisions make no reference to incentives and rewards, unlike the subsequent provision that directs that the BOP “may offer to prisoners who successfully participate in such programs and activities . . . incentives and rewards” earlier. 18 U.S.C.A. § 3621(h)(2)(3) (emphasis added).
Other courts have rejected the reasoning in Goodman and held the BOP has until January 15, 2022, to apply earned time credits under the terms of the First Step Act. See, e.g., Kennedy-Robey v. FCI Pekin, C/A No. 20-1371, 2021 WL 797516, at *3-4 (C.D. Ill. Mar. 2, 2021) (“while this provision may assume that the BOP will use its discretion to begin implementing the System, the provision does not require the BOP to use its discretion at any certain point prior to the end of the System's phase-in period. And, despite Kennedy-Robey's insistence, the Court cannot require the BOP to use its discretion when the statute does not.”); Hand v. Barr, C/A No. 1:20-00348-SAB-HC, 2021 WL 392445, at *5 (E.D. Cal. Feb. 4, 2021), report and recommendation adopted, 2021 WL1853295 (E.D. Cal. May 10, 2021); Llewlyn v. Johns, C/A No. 5:20-77, 2021 WL 535863, at *2 (S.D. Ga. Jan. 5, 2021), report and recommendation adopted, 2021 WL 307289 (S.D. Ga. Jan. 29, 2021)); Llufrio v. Johns, C/A No. 5:19-122, 2020 WL 5248556, at *2 (S.D. Ga. Aug. 13, 2020), report and recommendation adopted, 2020 WL 5245133 (S.D. Ga. Sept. 2, 2020); Herring v. Joseph, C/A No. 4:20-249-TKW-HTC, 2020 WL 3642706, at *1 (N.D. Fla. July 6, 2020).
Additionally, some courts have declined to grant relief where petitioners have failed to allege sufficient facts to indicate they were entitled to the earned time credits they sought. See, e.g., Hand, 2021 WL 392445, at *5; Llufrio, 2020 WL 5248556 at *2; Llewlyn, 2021 WL 535863, at *2.
The relevant statutes, as well as the heavy weight of authority, do not show that the BOP is obligated to apply Petitioner's earned time credits prior to January 15, 2022. The court is sympathetic to Petitioner's argument that he would be entitled to immediate transfer to pre-release custody if the BOP would apply his earned time credits. However, the court has no discretion to disregard the plain language of the relevant statutes. Additionally, “[t]here is no doubt that Congress can postpone the date on which a law, or part of a law, is to become effective. And where Congress has provided an express effective date for a statutory provision, that date controls.” Johnston v. Jacquez, C/A No. 2:19-00550-JLR-BAT, 2019 WL 2719722, at *10 (W.D. Wash. June 4, 2019) (citing Gozlon-Peretz v. United States, 498 U.S. 395, 403-08 (1991)), report and recommendation adopted, C/A No. 2:19-00550-JLR-BAT, 2019 WL 2716176 (W.D. Wash. June 28, 2019).
Petitioner, here, faces a similar situation to those inmates whose release dates preceded the effective date of the First Step Act's good conduct time amendment and who therefore did not see any benefit of that amendment. See Brown v. Warden of FCI Williamsburg, C/A No. 8:19-00546-HMH-JDA, 2019 WL 1780747, at *6 (D.S.C. Mar. 25, 2019) (“Because the Attorney General has not yet completed the assessment, the amendments to § 3624(b) have not taken effect. Accordingly Petitioner's argument that he is entitled to immediate relief is without merit. Although Petitioner may be frustrated with this process, the risk and needs assessment system being implemented by the BOP is in compliance with statutory requirements.”) (citations omitted), report and recommendation adopted, C/A No. 8:19-546-HMH-JDA, 2019 WL 1773382 (D.S.C. Apr. 23, 2019).
III. Conclusion and Recommendation
For the foregoing reasons, the undersigned recommends the district judge grant Respondent's motion to dismiss or, in the alternative, for summary judgment. [ECF No. 12].
The parties are directed to note the important information in the attached “ 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).