Opinion
Civil Action 2:23-01847-HMH-MGB
09-14-2023
Brandon King, Petitioner, v. Warden Joseph, FCI Bennettsville, Respondent.
REPORT AND RECOMMENDATION
MARY GORDON BAKER, UNITED STATES MAGISTRATE JUDGE
Petitioner Brandon King (“Petitioner”), appearing pro se, has filed a petition for habeas corpus pursuant to 28 U.S.C. § 2241, alleging that the Bureau of Prisons must immediately award him time credit under the First Step Act of 2018. (Dkt. No. 1.) Currently before the Court is Respondent's Motion to Dismiss or, in the alternative, Motion for Summary Judgment (Dkt. No. 12). Pursuant to the provisions of 28 U.S.C. §636(b)(1)(B), and Local Rule 73.02(B)(2) (D.S.C.), the assigned United States Magistrate Judge is authorized to review the Petition and submit findings and recommendations to the United States District Judge. For the reasons set forth below, the undersigned RECOMMENDS that Respondent's Motion (Dkt. No. 12) be GRANTED.
BACKGROUND
Petitioner is an inmate in the custody of the Federal Bureau of Prisons (“BOP”). He is currently housed at FCI Bennettsville, South Carolina. (Dkt. No. 12-1 at 1.) On February 8, 2017, Petitioner was sentenced to a total of 136 months' imprisonment by the United States District Court for the Western District of Texas. (Dkt. No. 8-1 at 2-3.) Petitioner's projected release date, with consideration for good conduct time, is December 25, 2025. (Dkt. No. 12 at 1.)
During Petitioner's incarceration, the First Step Act of 2018 became law. Pub. L. No. 115391, 132 Stat. 5194 (December 21, 2018). The First Step Act requires the BOP to create an incentive system for inmates to complete recidivism reduction programs through, among other things, the award of credits to reduce inmates' sentences. 18 U.S.C. § 3632(d). The law required the system be implemented by January 15, 2022, but during a two-year phase-in of the system that began on January 15, 2020, the BOP could, in its discretion, expand those programs to inmates and award credits under those programs, giving priority to inmates according to their proximity to their release date. 18 U.S.C. § 3621(h).
Petitioner now brings this action alleging that the BOP has failed to properly apply his earned time credits for Evidence-Based Recidivism Reduction (“EBRR”) Programming in light of the First Step Act. (Dkt. Nos. 1, 8-1.) Petitioner claims that he is eligible for immediate release based on his earned time credits. (Dkt. Nos. 1, 8-1.)
On August 3, 2023, Respondent filed the instant Motion to Dismiss or, in the alternative, Motion for Summary Judgment. (Dkt. No. 12.) The next day, this Court issued an Order pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising Petitioner of the dismissal procedure and the possible consequences if he failed to adequately respond. (Dkt. No. 13.) Petitioner responded to the Motion on September 1, 2023. (Dkt. No. 15.) Respondent declined to reply by the September 8, 2023 deadline. As such, the Motion before the Court has been fully briefed and is ripe for disposition.
LEGAL STANDARDS
As matters outside the pleadings have been considered by this Court, Respondent's Motion will be treated as one for summary judgment. Fed.R.Civ.P. 12(d) (“If, on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56....”). Federal Rule of Civil Procedure 56 states, as to a party who has moved for summary judgment: “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.” Fed.R.Civ.P. 56(a). As to the first of these determinations, a fact is deemed “material” if proof of its existence or nonexistence would affect the disposition of the case under the applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue of material fact is “genuine” if the evidence offered is such that a reasonable jury might return a verdict for the non-movant. Id. at 257.
In determining whether a genuine issue has been raised, this Court must construe all inferences and ambiguities against the movant and in favor of the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962). 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, 477 U.S. at 248. Further, while the federal court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case, see, e.g., Cruz v. Beto, 405 U.S. 319, 321 (1972), the requirement of liberal construction does not mean that the Court can ignore a clear failure in the pleadings to allege facts that set forth a federal claim, nor can the Court assume the existence of a genuine issue of material fact when none exists. Weller v. Dep't of Soc. Servs., 901 F.2d 387 (4th Cir. 1990).
DISCUSSION
Respondent argues that the § 2241 Petition should be dismissed because: (1) Petitioner failed to exhaust his administrative remedies before filing the Petition; and (2) Petitioner is not eligible for application of earned time credits under the First Step Act and, therefore, is ineligible for release. (Dkt. No. 12.) The undersigned considers these arguments, below.
I. First Step Act
“Federal sentencing law permits federal prison authorities to award prisoners credit against prison time as a reward for good behavior.” Barber v. Thomas, 560 U.S. 474, 476 (2010). “The BOP is vested with the authority by the Attorney General to calculate a federal prisoner's period of incarceration of the sentence imposed. Implicit in this authority is the ability to calculate, and re-calculate, the sentence as changes occur and time is earned and lost, and to correct any inaccurate calculations as they are discovered.” Morgan v. Morgan, No. 5:08-HC-2114-FL, 2010 WL 3239080, at *3 (E.D. N.C. Aug. 16, 2010) (internal citation omitted); see also Newsome v. Williams, No. 3:15-cv-141, 2016 WL 11431790, at *3 (N.D. W.Va. May 26, 2016) (“Following a federal conviction and sentencing, the United States Attorney General, acting through the BOP, is responsible for calculating an inmate's term of confinement.”), adopted, 2016 WL 4153615 (N.D. W.Va. Aug. 5, 2016).
The First Step Act, Pub. L. No. 115-391, 132 Stat. 5194 (2018), was enacted on December 21, 2018. Among other things, the First Step Act:
charged the Attorney General with the development and public release of the Risk and Needs Assessment System (the “System”) within 210 days of the enactment of the statute. 18 U.S.C. § 3632. Following its development and publication, the System is designed to be used to: determine an inmate's recidivism risk; assess the inmate's risk of violent or serious misconduct; determine the appropriate type and amount of evidence-based recidivism reduction (“EBRR”) programming appropriate for each inmate; periodically reassess an inmate's recidivism risk; reassign an inmate to appropriate EBRR programs or productive activities (“PAs”); determine when to provide the inmate with incentives and rewards for successful participation in EBRR and PAs; and determine when the inmate is ready to transfer into prerelease custody or supervised release. 18 U.S.C. § 3632(a). The System provides guidance on the type, amount, and intensity of EBRR programs and PAs to be assigned to each inmate based on the inmate's specific criminogenic needs. 18 U.S.C. § 3632(b). The System is also intended to provide information on the best ways the BOP can tailor programs to the specific criminogenic needs of an inmate so as to effectively lower each inmate's risk of recidivism. 18 U.S.C. § 3632(b). The statute permits an eligible inmate who successfully completes EBRR programming or PAs to earn time credits to be applied toward time in prerelease
custody or supervised release. 18 U.S.C. § 3632(d)(4)(A). An eligible inmate who successfully completes EBRR programming or PAs may earn ten days of time credits for every thirty days of successful participation. Id. Additionally, an eligible inmate determined to be at minimum or low risk for recidivating who does not increase their risk of recidivism over two consecutive assessments may earn five days of time credits for every thirty days of successful participation in EBRR programs and PAs. Id.Hill v. Knight, No. 2:21-cv-00103-SAL-MGB, 2021 WL 5605592, at *3 (D.S.C. Sept. 14, 2021), adopted, 2021 WL 5598954 (D.S.C. Nov. 30, 2021) (quoting Kurti v. White, No. 1:19-cv-2109, 2020 WL 2063871, at *4 (M.D. Pa. Apr. 29, 2020)).
II. Exhaustion of Administrative Remedies
Respondent first argues that Petitioner has failed to exhaust his administrative remedies before filing the Petition, and his § 2241 Petition should therefore be dismissed. (Dkt. No. 12.) Although 28 U.S.C. § 2241 does not contain a statutory exhaustion requirement, courts have required 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 a § 2241 matter); Timms v. Johns, 627 F.3d 525, 531 (4th Cir. 2010) (noting courts require “exhaustion of alternative remedies before a prisoner can seek federal habeas relief” (internal quotation marks omitted)). A court may excuse an inmate's failure to exhaust upon a showing of cause and prejudice. McClung v. Shearin, 90 Fed.Appx. 444, 445 (4th Cir. 2004).
The BOP has a four-step administrative grievance process. See 28 C.F.R. § 542.12 et seq. The grievance process consists of three levels of review: institutional, regional, and national. See id. First, an inmate must seek to informally resolve any complaint relating to his confinement. Id. § 542.13. Next, if the complaint cannot be resolved informally, the inmate may file a formal written Administrative Remedy Request; Requests must be filed within twenty days of the incident giving rise to the complaint. Id. § 542.14. Then, if the inmate is dissatisfied with the response, he may appeal to the Regional Director; appeals to the Regional Director must be submitted within twenty days of the date the warden signed his response. Id. § 542.15(a). Finally, if the inmate is dissatisfied with the Regional Director's response, the inmate may appeal to the General Counsel; appeals to the General Counsel must be submitted within thirty days of the date the Regional Director signed his response. Id. If, during this process, the inmate does not receive a response in the allotted time frame (including any extensions), the inmate may consider the request denied and appeal to the next level. Id. § 542.18.
In his Petition, Petitioner concedes that he has not exhausted his administrative remedies because he completed only the initial step of the BOP's administrative grievance process. Specifically, Petitioner asserts that he did not “file a formal Request(s) for Administrative Remedy,” “file an administrative Remedy Appeal (Form BP-10),” or “file a ‘final administrative appeal' under 28 C.F.R.§ 542.15 concerning the BOP decision.” (Dkt. No. 1 at 6; Dkt. No. 8-1 at 6.) Petitioner asserts that attempting to further exhaust his remedies would be futile because “the question presented here is a matter of legislative interpretation which neither the Respondent nor the BOP can resolve.” (Dkt. No. 1 at 6; Dkt. No. 8-1 at 6.)
Respondent submitted with his Motion a declaration from J. Carter, the Paralegal for the South Carolina Consolidated Legal Center, located at the Federal Correctional Institution in Edgefield, South Carolina. (Dkt. No. 12-1.) J. Carter avers that, due to his position, he has “access to the BOP's SENTRY computer database, which tracks . . . administrative remedies . . . of inmates in federal custody.” (Id. at 1.) According to J. Carter, “A review of SENTRY shows that Petitioner filed two administrative remedies; however, none are related to FSA earned time credits.” (Id.)
Based on this record, the undersigned finds Petitioner has not exhausted his administrative remedies. Assuming without deciding that futility alone can demonstrate cause to excuse the exhaustion requirement, Petitioner does not explain how this case turns on a question of statutory construction or, relatedly, why the BOP cannot apply the statute in the first instance. Rather, as described in greater detail below, Petitioner's arguments rely upon his misinterpretation of the First Step Act. Such misinterpretation is an insufficient basis on which to excuse his failure to exhaust his administrative remedies.
Also, exhaustion of remedies within the BOP would allow Petitioner to build a record and give the BOP the opportunity to give a reasoned decision that Petitioner could then challenge in court, if necessary. See, e.g., Wright v. Warden of Edgefield FCI, No. 8:21-cv-0388-JD-JDA, 2021 WL 2270011 at 9 (D.S.C. Mar. 18, 2021) (considering similar issue; “this is precisely the type of case which requires a fully developed administrative record so that the Court may evaluate the BOP's calculation of time to be credited to Petitioner's sentence”), adopted, 2021 WL 2269960 (D.S.C. June 2, 2021); Brown v. Warden of FCI Williamsburg, No. 8:19-cv-00546-HMH-JDA, 2019 WL 1780747, at *8 (D.S.C. Mar. 25, 2019) (finding the petitioner could not show that exhaustion would be futile because the BOP should have the opportunity to consider this issue internally while it implements the First Step Act's requirements, before it is subjected to judicial scrutiny), adopted, 2019 WL 1773382 (D.S.C. Apr. 23, 2019). Therefore, Petitioner fails to demonstrate cause to excuse the exhaustion requirement and the Petition should be dismissed. See, e.g., Patel v. Warden, No. 8:22-cv-2027-RMG-JDA, 2022 WL 3030781, at *4 (D.S.C. July 7, 2022), adopted, 2022 WL 3030738 (D.S.C. Aug. 1, 2022); Arriaga v. Knight, No. 1:21-cv-0258-JFA-SVH, 2021 WL 11133544 (D.S.C. Feb. 3, 2021), adopted, 2021 WL 11133545 (D.S.C. Feb. 23, 2021).
III. Eligibility for Earned Time Credits
Alternatively, even if the exhaustion requirement were satisfied, the Petition should still be dismissed because, as Respondent argues, Petitioner is ineligible for application of earned time credits under the First Step Act. (Dkt. No. 12.) 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).
Regarding prerelease custody, 28 C.F.R. § 523.44(c) states:
(c) Prerelease custody. The Bureau may apply earned FSA Time Credits toward prerelease custody only when an eligible inmate has, in addition to satisfying the criteria in paragraph (b) of this section:
(1) Maintained a minimum or low recidivism risk through his or her last two risk and needs assessments; or
(2) Had a petition to be transferred to prerelease custody or supervised release approved by the Warden, after the Warden's determination that: (i) The prisoner would not be a danger to society if transferred to prerelease custody or supervised release; (ii) The prisoner has made a good faith effort to lower their recidivism risk through participation in recidivism reduction programs or productive activities; and (iii) The prisoner is unlikely to recidivate.
With respect to early transfer to supervised release, 28 C.F.R. § 523.44(d) explains:
(d) Transfer to supervised release. The Bureau may apply FSA Time Credits toward early transfer to supervised release under 18 U.S.C. 3624(g) only when an eligible inmate has, in addition to satisfying the criteria in paragraphs (b) and (c) of this section:
(1) An eligible inmate has maintained a minimum or low recidivism risk through his or her last risk and needs assessment;
(2) An eligible inmate has a term of supervised release after imprisonment included as part of his or her sentence as imposed by the sentencing court; and
(3) The application of FSA Time Credits would result in transfer to supervised release no earlier than 12 months before the date that transfer to supervised release would otherwise have occurred.
Regardless of eligibility status, all sentenced inmates receive a risk and need assessment, which indicates their risk of recidivism. See BOP Program Statement 5410.01, available at https://www.bop.gov/mobile/policy/ (search by policy number “5410.01”). The Prisoner Assessment Tool Targeting Estimated Risk and Needs (“PATTERN”) is the recidivism risk assessment tool. Id. It is part of the BOP's First Step Act approved Risk and Needs Assessment System. Id. Respondent has provided evidence that Petitioner received a risk and need assessment on January 31, 2023, and again on July 2, 2023. (Dkt. No. 12-1 at 1.) Petitioner's PATTERN score on January 31, 2023 indicated that his risk level was high. (Id.) Petitioner's PATTERN score on July 2, 2023 reflected the same high risk level. (Id.)
To the extent Petitioner argues that his PATTERN score is inaccurate and/or was manipulated by the BOP, the undersigned finds this argument unpersuasive, as Petitioner provides nothing more than his own suspicions to support this theory. (See generally Dkt. No. 15.)
According to 28 C.F.R. § 523.44(c)(1) and (d)(1), Petitioner may earn time credits with a high risk level, but he may not apply those time credits to prerelease custody or early transfer to supervised release. Further, there is no indication that Petitioner has successfully petitioned to be transferred to prerelease custody or supervised release following the PATTERN determination, as required pursuant to 28 C.F.R. § 523.44(c)(2). (Id.) Thus, Petitioner is precluded from applying his time credits under the First Step Act.
In spite of the foregoing, Petitioner asserts that Respondent is in violation of 18 U.S.C. § 3632(d)(4)(C), which provides as follows:
Time credits earned under this paragraph by prisoners who successfully participate in recidivism reduction programs or productive activities shall be applied toward time in prerelease custody or supervised release. The Director of the Bureau of Prisons shall transfer eligible prisoners, as determined under section 3624(g), into prerelease custody or supervised release.18 U.S.C. § 3624(g) reads, in relevant part:
(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 ....
(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.
The record before the Court simply does not support a finding that Respondent has violated 18 U.S.C. § 3632(d)(4)(C). As Respondent correctly notes, Petitioner seems to ignore and/or misinterpret the conditions outlined in 18 U.S.C. § 3624(g) when making his arguments to the Court. (See generally Dkt. Nos. 1, 8-1, 15.) Further, Petitioner
misunderstands a crucial part of the FSA concerning not just [his] ability to earn time credits, but the application of those credits. While [Petitioner] is free to earn time credits as an inmate with a [high] risk recidivism level, under 18 U.S.C. § 3624(g)(1)(D)(i)-(ii), the BOP cannot apply those time credits to [his] sentence unless and until [he] has a minimum or low risk recidivism level for two consecutive assessments for prerelease custody or a minimum or low risk recidivism level for the last assessment for supervised release.Frazier v. Strong, No. 8:23-cv-1986-JD-JDA, 2023 WL 5155939, at *4 (D.S.C. June 27, 2023) (quoting Brown v. Garrett, No. 7:22-cv-00551-AMM-JHE, 2022 WL 18161601, at *3 (N.D. Ala. Dec. 22, 2022)), adopted, 2023 WL 5155585 (D.S.C. Aug. 10, 2023).
In sum, the First Step Act expressly states that an inmate with a medium or high risk of recidivism according to his PATTERN score may not have successfully completed recidivism reduction programs and productive activities applied towards his time credits until he receives a minimum or low risk PATTERN score for two consecutive assessments. Id. Here, Petitioner's last two PATTERN scores indicated a high risk of recidivism. (Dkt. No. 12-1 at 1-2.) Petitioner does not dispute this. (See generally Dkt. Nos. 1, 8-1, 15.) Accordingly, the undisputed record shows that Petitioner is not eligible for application of his earned time credits. The undersigned therefore RECOMMENDS that Respondent's Motion for Summary Judgment be GRANTED, and that the Petition be dismissed in full.
CONCLUSION
Based on the foregoing, the undersigned Magistrate Judge RECOMMENDS that the Court GRANT Respondent's Motion for Summary Judgment (Dkt. No. 12).
IT IS SO RECOMMENDED.
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
Post Office Box 835
Charleston, South Carolina 29402
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).