Opinion
CIVIL 1:24-CV-00316
05-09-2024
FRANCISCO ANDRICKS PENA #76203-054, Petitioner v. WARDEN F C I POLLOCK, Respondent
SEC P
EDWARDS, JUDGE
REPORT AND RECOMMENDATION
JOSEPH H.L. PEREZ-MONTES UNITED STATES MAGISTRATE JUDGE
Before the Court is a Petition for Writ of Habeas Corpus under 28 U.S.C. § 2241 (ECF No. 1) filed by pro se Petitioner Francisco Andricks Pena (“Pena”). Pena is incarcerated at the Federal Correctional Institution in Pollock, Louisiana (“FCI -Pollock”). He alleges that he is entitled to the application of time credits under the First Step Act of 2018 (“FSA”), P.L. 115-391, § 102(b)(1), 132 Stat 5194, 5210.
Because Pena is not entitled to the relief sought, the Petition (ECF No. 1) should be DENIED and DISMISSED WITHOUT PREJUDICE.
I. Background
Pena alleges that the BOP is refusing to apply sentencing credit to which he is entitled. ECF No. 1 at 6. He sought administrative relief, which was denied. ECF No. 1-3 at 7.
II. Law and Analysis
The FSA amended 18 U.S.C. § 3621, which governs the calculation of federal prison sentences. Section 102(b) of the FSA also amended 18 U.S.C. § 3624(b), allowing federal inmates to earn additional time credits. See P.L. 115-391, § 102(b)(1). Among other things, the FSA allows eligible inmates who successfully complete evidence-based recidivism reduction programming and productive activities to earn time credits, which may be applied toward an early transfer to pre-release custody or supervised release. See 18 U.S.C. § 3632(d)(4)(A).
Prior to February 6, 2023, BOP policy precluded inmates with any kind of detainer from applying earned credits. See Program Statement 5410.01, First Step Act of 2018 - Time Credits: Procedures for Implementation of 18 U.S.C. § 3632(d)(4) at 14 (available at www.bop.gov). As of February 6, 2023, detainers alone are no longer considered disqualifying. However, prisoners with final orders of removal remain ineligible to apply FSA credits. See id.; see also 18 U.S.C. § 3632(d)(4)(E) (prisoner with a final order of removal is ineligible to apply FSA Time Credits).
Pena admits that he is subject to a final order of removal. ECF No. 1 at 6. Accordingly, he is ineligible to apply First Step Act time credits. See 18 U.S.C. § 3632(d)(4)(E).
III. Conclusion
Because Pena is entitled to no relief, IT IS RECOMMENDED that the Petition for Writ of Habeas Corpus under § 2241 (ECF No. 1) be DENIED and DISMISSED WITH PREJUDICE.
Under 28 U.S.C. § 636(b)(1)(c) and Fed.R.Civ.P. 72(b), a party may file written objections to this Report and Recommendation within 14 days of service, unless the Court grants an extension of time to file objections under Fed.R.Civ.P. 6(b). A party may also respond to another party's objections to this Report and Recommendation within 14 days of service of those objections, again unless the Court grants an extension of time to file a response to objections.
No other briefs may be filed without leave of court, which will only be granted for good cause. A party's failure to timely file written objections to this Report and Recommendation will bar a party from later challenging factual or legal conclusions adopted by the District Judge, except if the challenge asserts “plain error.”