Opinion
CV 23-01359 PHX ROS (CDB)
03-01-2024
Antonio Thigpen, Petitioner, v. Unknown Heisner, Warden FCI Phoenix, Respondent.
REPORT AND RECOMMENDATION
Camille D. Bibles, United States Magistrate Judge
TO THE HONORABLE ROSLYN O. SILVER:
Petitioner Antonio Thigpen seeks relief pursuant to 28 U.S.C. § 2241, asking the Court to order the the Federal Bureau of Prisons (“BOP”) to recalculate the expiration of his sentence. Respondent filed an answer to the petition (ECF No. 10), and the time allowed Thigpen to file a reply has expired.
When he filed his § 2241 petition Thigpen was incarcerated at the Federal Correctional Institution (“FCI”) in Phoenix, Arizona. Per the BOP inmate information database, Thigpen is now at a Minneapolis Residential Reentry Management (“RRM”) facility overseen by the BOP. A RRM is a program which provides federal offenders with community-based services that will assist with their reentry needs.
The District of Arizona retains jurisdiction over the petition. See Richitelli v. Shartle, 2017 WL 5900072, at *2 (D. Ariz. Nov. 6, 2017) (“[Jurisdiction] is sufficient if the custodian is in the territorial jurisdiction of the court at the time the petition is filed, and once jurisdiction has been properly established, transfer of the petitioner thereafter does not defeat personal jurisdiction.”). See also Rumsfeld v. Padilla, 542 U.S. 426, 441 (2004) (“when the Government moves a habeas petitioner after [they] properly files a petition naming [their] immediate custodian, the District Court retains jurisdiction and may direct the writ to any respondent within its jurisdiction who has legal authority to effectuate the prisoner's release.”).
I. Background
On May 11, 2016, pursuant to a plea agreement, the District of Iowa found Thigpen guilty of being a prohibited person, i.e., a felon and user of a controlled substance, in possession of a firearm and ammunition, in violation of 18 U.S.C. §§ 922(g)(1), 922(g)(3), and 924(a)2). See United States v. Thigpen, 1:15-CR-001002 (N.D. Iowa), at ECF No. 30. See also United States v. Thigpen, 848 F.3d 841, 843 (8th Cir. 2017). Thigpen was sentenced to a term of 120 months' incarceration followed by three years of supervised release. Thigpen, 1:15 CR 001002, at ECF No. 30. The sentence began to run on December 16, 2015, and the full term expiration date is December 14, 2025. (ECF No. 91 at 6). Per the BOP inmate database Thigpen has a current release date of November 19, 2024, and per Respondent's answer to the petition his release date, including good conduct time, is November 5, 2024. (ECF No. 9 at 2; ECF No. 9-1 at 4).
On March 3, 2023, Thigpen's most recent Program Review was conducted and he was determined to be a medium risk for recidivism. (ECF No. 9-1 at 2). Thigpen's recidivism risk was to be re-assessed on August 23, 2023. (Id.). Thigpen filed his §2241 petition on July 13, 2023, prior to the scheduled assessment. Thigpen did not file a timely reply to the response to his petition, accordingly it is unknown whether his risk for recidivism remained at the medium level or was lowered during that review process.
II. Analysis
Habeas corpus relief extends to a person in custody under the authority of the United States. See 28 U.S.C. § 2241. Relief is available if a federal prisoner can show he is “in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241(c)(3). Thigpen asserts the BOP is “refusing to apply [First Step Act] earned time credits” to his sentence. (ECF No. 1 at 2).
Respondent asserts:
Petitioner's eligibility for FSA earned time credits (“FSA FTC”) was reviewed on December 9, 2019, and he was deemed eligible to earn FSA time credits. Id. at ¶ 5. During his most recent Program Review on March 3, 2023, he was determined to be a medium risk for recidivism. Id. Because of Petitioner's medium risk for recidivism, he is not eligible to have any earned
time credits applied toward prerelease custody or his supervised release term. Id. at ¶ 6.(ECF No. 9 at 2).
Resolution of Thigpen's claim for relief involves application of the the “First Step Act of 2018,” Pub. L. No. 115-391, 132 Stat. 5194 (1980) (“FSA”). The FSA addresses the reentry of incarcerated individuals into society. As part of the FSA, Congress directed the BOP to implement reentry initiatives, including programming and programming incentives. Congress further directed the United States Attorney General to develop a risk and needs assessment system, and to appropriately direct programming and programming incentives by “determining] the recidivism risk of each prisoner” and classifying “each prisoner as having minimum, low, medium, or high risk for recidivism.” 18 U.S.C. § 3632(a). An eligible prisoner can earn 10 days (plus an additional five days if he meets the criteria for minimum or low risk of recidivism) of FSA time credits “for every 30 days of successful participation in evidence-based recidivism reduction programming or productive activities.” 18 U.S.C. § 3632(d)(4)(A); 28 C.F.R. § 523.42(c).
Time credits earned under 18 U.S.C. § 3632(d)(4) “shall be applied toward time in prerelease custody or supervised release ...” 18 U.S.C. § 3632(d)(4)(C). Pursuant to 18 U.S.C. § 3624(g), an “eligible prisoner” for the application of FTCs to prerelease custody or supervised release is defined as one who meets the following four criteria:
(A) the prisoner must have earned FTCs;
(B) the prisoner must have demonstrated “recidivism risk reduction or has maintained a minimum or low recidivism risk during their term of imprisonment”;
(C) the prisoner “has had the remainder of their imposed term of imprisonment computed under applicable law”; and
(D) the prisoner has either (I) “been determined under the System to be a minimum or low risk to recidivate pursuant to the last two reassessments of the prisoner f or (II) has had a petition to be transferred to prerelease custody or supervised release approved by the warden after the warden has determined the prisoner meets certain criteria.18 U.S.C. § 3624(g)(A)-(D) (emphasis added).
Although a prisoner who is a medium risk for recidivism is eligible to earn FSA time credits for successful participation in recidivism programming, pursuant to 18 U.S.C. § 3632(d), they must be a “minimum or low risk” to have those credits applied to their sentence. Section 3624(g) requires, for placement in prerelease custody, that the prisoner “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 has specific approval by the warden. 18 U.S.C. § 3624(g)(1)(D)(i). For early transfer to supervised release, § 3624(g) requires that the inmate “has been determined under the System to be a minimum or low risk to recidivate pursuant to the last reassessment of the prisoner.” Id. § 3624(g)(1)(D)(ii).
Time credits may be applied toward early transfer to supervised release “only when an eligible inmate has ... maintained a minimum or low recidivism risk through his or her last risk and needs assessment.” 28 C.F.R. § 53.44(d)(1); see also ... BOP Program Statement 5410.01 (setting forth requirements for application of FSA time credits). The Program Statement further states that inmates who have a high or medium recidivism risk level are ordinarily “considered inappropriate for early transfer to prerelease custody or supervised release.” []Martinez v. Gutierrez, 2023 WL 6466490, at *3 (D. Ariz. July 14, 2023), report and recommendation adopted, 2023 WL 6464850 (D. Ariz. Oct. 4, 2023).
The unambiguous language of 18 U.S.C. § 3624(g) precludes application of time credits until an inmate has lowered his recidivism risk level to a low or minimum classification. See LaPuente v. Derr, 2023 WL 3821136, at *5 (D. Haw. June 5, 2023) Application of earned time credits, i.e., creating and implementing an earlier release date based on earned credits, cannot occur until the inmate has been determined to be a minimum or low recidivism risk. See, e.g., Moody v. Gubbiotti, 2022 WL 4976308, *6 (D.N.J. Oct. 3, 2022); Bell v. Finley, 2022 WL 1721045, *4 (M.D. Pa. May 27, 2022). Accordingly, 18 U.S.C. § 3624(g) precludes application of Thigpen's earned time credits until, or unless, he lowered his recidivism risk level as required by the FSA.
Additionally, Thigpen is not entitled to relief because the challenged decision is committed to the discretion of the BOP. See Reeb v. Thomas, 636 F.3d 1224, 1227 (9th Cir. 2011).
Whether to permit an inmate to complete the end-phase of their sentence outside of formal prison custody is a matter of discretion left to the BOP. See Smallwood v. Thompson, 2021 WL 5112663 (E.D. Cal. Nov. 3, 2021) (finding “whether or not to grant Petitioner early release” pursuant to the FSA is “a matter within the BOP's discretion.”). And although application of an inmates FSA FTCs may effectively move up the date that inmate is eligible to be considered for prerelease custody, application of those FTCs do not compel the BOP to allow that inmate to participate in prerelease custody. Id. “District courts interpreting this provision have uniformly held that designation and placement decisions made by the BOP, including whether an inmate is granted home confinement, are not reviewable by the district court.” Arreola v. von Blanckensee, No. CV-20-00351-TUC-DCB (JR), 2022 WL 18865120, at *4 (D. Ariz. Oct. 3, 2022), report and recommendation adopted, No. CV-20-00351-TUC-DCB, 2023 WL 2242853 (D. Ariz. Feb. 27, 2023). See also Wilcox v. Merlak, No. 1:19-cv-01410-NONE-SKO (HC), 2020 WL 996630, at *3 (E.D. Cal. Mar. 2, 2020) (“Thus, Petitioner's challenge to the BOP's discretionary decision with respect to whether and when he is eligible for home confinement placement ... is not reviewable by this Court.”); United States v. Robledo, No. 18-CR-2190-AJB, 2020 WL 2542641, at *7 (S.D. Cal. May 19, 2020) (“the decision to grant or deny home confinement is within the discretion of BOP and not subject to judicial review.”).Mars v. Heisner, 2023 WL 4977335, at *6 (D. Ariz. June 26, 2023), report and recommendation adopted, 2023 WL 4960411 (D. Ariz. Aug. 3, 2023).
Furthermore, Thigpen does not have a federal constitutional right, i.e., a cognizable liberty interest, in early release via the FSA. See Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1, 7 (1979) (“There is no constitutional or inherent right of a convicted person to be conditionally released before the expiration of a valid sentence.”). Due process protections do not extend to “prisoner classification and eligibility for rehabilitative programs in the federal system. Congress has given federal prison officials full discretion to control these conditions of confinement.” Moody v. Daggett, 429 U.S. 78, 88 n.9 (1976). See also Reeb, 636 F.3d at 1227; McLean v. Crabtree, 173 F.3d 1176, 1184 (9th Cir. 1999); Vargas Diaz v. Heisner, 2024 WL 866368, at *3 (D. Ariz. Feb. 6, 2024); Walton v. Booker, 2006 WL 2374843, *3 (D. Ariz. Aug. 16, 2006).
Accordingly, IT IS RECOMMENDED that Thigpen's § 2241 petition at ECF No. 1 be denied.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the District Court's judgment.
Pursuant to Rule 72(b), Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. Thereafter, the parties have fourteen (14) days within which to file a response to the objections. Pursuant to Rule 7.2(e)(3) of the Local Rules of Civil Procedure for the United States District Court for the District of Arizona, objections to the Report and Recommendation may not exceed ten (10) pages in length. Failure to timely file objections to any factual or legal determinations of the Magistrate Judge will be considered a waiver of a party's right to de novo appellate consideration of the issues. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc).