Opinion
1:23-CV-1320-DII-ML
04-22-2024
GREGORY OLDFIELD, Petitioner, v. G. ROSALEZ, Respondent.
REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
MARK LANE UNITED STATES MAGISTRATE JUDGE
TO THE HONORABLE ROBERT PITMAN UNITED STATES DISTRICT JUDGE:
Before the court is Defendant G. Rosalez's Motion to Dismiss (Dkt. 10) and all related briefing. After reviewing the pleadings and the relevant case law, and determining that a hearing is not necessary, the undersigned submits the following Report and Recommendation to the District Court.
The Motion was referred by United States District Judge Robert Pitman to the undersigned for a Report and Recommendation as to the merits pursuant to 28 U.S.C. § 636(b) and Rule 1(d) of Appendix C of the Local Rules of the United States District Court for the Western District of Texas. Dkt. 2 (Standing Order).
I. Background
Petitioner Gregory Oldfield, Federal Register No. 48760-177, is currently serving a 188-month sentence followed by three years of supervised release for Possession of a Controlled Substance with Intent to Distribute and Aiding and Abetting in violation of 21 U.S.C. § 841(a)(1), 21 U.S.C. § 841 (b)(1)(C), and 18 U.S.C. § 2. See United States v. Oldfield, No. 3:14-CR-00367B (N.D. Tex. Sept. 14, 2015), Dkt. 1158. Oldfield is currently incarcerated at the Federal Correctional Institution in Bastrop, Texas (“FCI Bastrop”). Dkt. 1; Dkt. 10-1 ¶ 3.
Oldfield filed his Petition on October 31, 2023. Dkt. 1. Oldfield contends that there is a discrepancy between his PATTERN risk assessment score and his FSA recidivism risk assessment for the FSA assessment period between July 1, 2022 and December 28, 2022. See Id. at 7 (Ground One). Oldfield also asks that his prior FSA risk assessments be revisited using the new PATTERN scoring methodology adopted in May 2022. See Id. (Ground Two). Finally, Oldfield argues he should have begun to accrue 15 credits for every 30-day period after he was assessed as “Low” for two consecutive periods. See Id. (Ground Three). Oldfield requests that the court order the BOP to update his earned time credit calculation to reflect the accrual of 15 FSA time credits per 30-day period where appropriate. Id. at 8.
Rosalez moved to dismiss, contending that Oldfield has not shown any error in the BOP's FSA risk assessment or credit calculation, Dkt. 10 at 5, and that Oldfield is not entitled to have the updated PATTERN Scoring System retroactively applied to his prior FSA risk assessments. Id. at 9. In response to an order to respond to the Motion to Dismiss at the risk of a recommendation that his case be dismissed for want of prosecution, Oldfield conceded that he “agree[d] with most of the U.S. Attorney's motion.” Dkt. 12 at 1. In his Response, Oldfield significantly narrowed what the court must resolve:
The issue that I am seeking relief for is, I was scheduled for my six month review on 7-1-22. This meeting was cancelled by my Case Manager and set back one week. The assessment for the period of 7-1-22-12-28-22 would have been done on 7-1-22 if my unit team would have followed the scheduled meeting time. Because of the cancellation, I have a score of MED for the first week of the Assessment period. This set back is not my fault and should be corrected. . . .Id.
Oldfield “ask[s] the court to have the Bureau of Prisons change the Risk Assignment for the period 7-1-22-12-28-22 from MED to LOW and recalculate my earned time to reflect this change.” Id. at 2. Thus, the issue the court must resolve is whether Oldfield's assessment date, in effect, should be moved back.
II. Applicable Law
A § 2241 petition on behalf of a sentenced prisoner attacks the manner in which a sentence is carried out or the prison authorities' determination of its duration, and must be filed in the same district where the prisoner is incarcerated. Pack v. Yusuff, 218 F.3d 448, 451 (5th Cir. 2000).
In December 2018, Congress passed the First Step Act. The FSA was implemented in phases. First, the Attorney General developed and released a “risk and needs assessment system.” 18 U.S.C. § 3632(a). The risk and needs assessment system is used to determine the recidivism risk of each prisoner, assign the prisoner to appropriate evidence-based recidivism reduction programs (“EBRR”) or productive activities (“PAs”), and determine when to provide incentives and rewards for successful participation in EBRR programs and PAs. See Id. The FSA also requires the Attorney General to “review, validate, and release publicly . . . the risk and needs assessment system” on an annual basis, see Id. § 3631(b)(4), and “make any revisions or updates to the risk and needs assessment system that the Attorney General determines appropriate.” 18 U.S.C. § 3631(b)(5).
In July 2019, the Prisoner Assessment Tool Targeting Estimated Risk and Needs (“PATTERN”) was created to assess an individual's risk of recidivism once released from federal custody. After public review and comment, a revised version was implemented in January 2020. The current version of the risk assessment tool, PATTERN 1.3, was adopted and implemented in May 2022.
After the development of the risk and needs assessment system, the BOP was required to “implement and complete the initial intake risk and needs assessment for each prisoner.” 18 U.S.C. § 3621(h)(1)(A). The FSA required the BOP to “determine the recidivism risk of each prisoner as part of the intake process, and classify each prisoner as having minimum, low, medium, or high risk for recidivism.” Id. § 3632(a)(1). The BOP was also required to determine the type and amount of EBRR programming and PAs appropriate for each prisoner and assign each prisoner to such programming. Id. § 3632(a)(3). By January 15, 2020, all inmates in the BOP system had received an initial assessment using the PATTERN risk assessment tool. The FSA then provided a two-year phase-in period for the BOP to “provide such evidence-based recidivism reduction programs and productive activities to all prisoners.” 18 U.S.C. § 3621(h)(2). During the phase-in period, the FSA allowed the BOP to begin offering incentives, including time credits towards pre-release custody or supervised release, to prisoners for successfully participating in EBRR programming and PAs. See id.; 18 U.S.C. § 3632(d)(4)(A).
The BOP uses the PATTERN system to determine the recidivism risk of each prisoner and assign the prisoner to appropriate EBRR programming and PAs. The PATTERN risk assessment is first completed during the inmate's initial classification. The BOP must then provide periodic risk reassessments no less often than annually. See 18 U.S.C. § 3632(d)(5). In practice, the BOP reassesses each prisoner's FSA recidivism risk score at least every 180 days during routine program reviews.
III. Analysis
The issue for the court to resolve is whether Oldfield is entitled to relief based on the involuntary rescheduling of his review. Dkt. 12 at 1. Rosalez, in reply, asserts that the BOP properly calculated Oldfield's time credits. Dkt. 13 at 1. Rosalez also notes that Oldfield did not raise this issue in his Petition. Id. Nonetheless, a liberal reading of Oldfield's Petition, indicates that the date of his review is central to his claims. See Dkt. 1 at 2, 3, 6.
The FSA requires periodic risk reassessments at least annually. See 18 U.S.C. § 3632(d)(5). But the BOP provides periodic reviews more frequently-at least every 180 days. See Dkt. 13 at 2 (citing to and summarizing BOP policy).
The BOP conducted one of Oldfield's reviews on January 14, 2022. Dkt. 13-1 ¶7. Oldfield's next review was held 175 days later on July 8, 2022. Id. Thus, reviews occurred within 180 days as required by BOP policy and within one year as required by the FSA. See 18 U.S.C. § 3632(d)(5). The review about which Oldfield complains, the July 8, 2022 review, was thus timely under both BOP policy and the law.
IV. Conclusion
In his Petition, Oldfield alleged that the BOP improperly determined his recidivism risk and thus miscalculated the rate at which he accrues FSA time credits. See Dkt. 1. In his Response to Rosalez's Motion to Dismiss, Oldfield agreed with “most of the [] motion.” Dkt. 12 at 1. Based on Oldfield's Response, the court concludes that Oldfield concedes Grounds Two and Three. Compare Dkt. 1 at 6 with Dkt. 12 at 1.
As to his complaint that the involuntary rescheduling of his review date affected the rate at which he accrues time credits to his detriment, neither BOP policy nor the FSA provide an avenue for relief. All that is required is that the review occur within 180 days; they need not coincide with FSA assessment periods. Although Oldfield's case manager could have scheduled an earlier review within the 180-day window, nothing in the FSA or BOP policy the case manager to do so.
Because Oldfield has not shown any error in his risk assessment or time credit calculation, the undersigned will recommend that the District Court dismiss his Petition.
V. Recommendations
For the reasons given above, the undersigned RECOMMENDS that Rosalez's Motion to Dismiss (Dkt. 10) be GRANTED and the Petition be DISMISSED with prejudice. VI. Objections
The parties may file objections to this Report and Recommendation. A party filing objections must specifically identify those findings or recommendations to which objections are being made. The District Court need not consider frivolous, conclusive, or general objections. See Battles v. United States Parole Comm 'n, 834 F.2d 419, 421 (5th Cir. 1987).
A party's failure to file written objections to the proposed findings and recommendations contained in this Report within fourteen (14) days after the party is served with a copy of the Report shall bar that party from de novo review by the District Court of the proposed findings and recommendations in the Report and, except upon grounds of plain error, shall bar the party from appellate review of unobjected-to proposed factual findings and legal conclusions accepted by the District Court. See 28 U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140, 150-53 (1985); Douglass v. United Services Auto. Ass'n, 79 F.3d 1415 (5th Cir. 1996) (en banc).