Opinion
CIV-22-866-SLP
05-26-2023
CALVIN PATILLAR, Petitioner, v. KRIS GOLDEY, Warden, FCI El Reno, Respondent.
REPORT AND RECOMMENDATION
AMANDA MAXFIELD GREEN UNITED STATES MAGISTRATE JUDGE
Petitioner Calvin Patillar, a federal prisoner appearing pro se, has filed this action seeking habeas corpus relief under 28 U.S.C. § 2241. (Docs. 1, 2). The matter has been referred to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B), (C). (Doc. 6). Respondent has filed a response requesting that the Court deny the Petition for failure to exhaust administrative remedies or, alternatively, dismiss the Petition for failure to state a claim upon which relief may be granted. (Doc. 13, at 10). Upon review, the undersigned recommends the action be DENIED as Petitioner is ineligible for relief under the First Step Act.
I. Background
Petitioner is a federal inmate currently incarcerated at the Federal Correctional Institution in El Reno, Oklahoma. (Doc. 1, at 1). On February 3, 2009, Petitioner pled guilty to one count of interference with commerce by robbery and aiding and abetting, in violation of 18 U.S.C. § 1951 and § 2 (Count One), and one count of possession of a firearm in furtherance of a crime of violence, in violation of 18. U.S.C. § 924(c) (Count Two), before the United States District Court for the Northern District of Oklahoma. (Doc. 2, at 2; Doc. 13, at Ex. 2, at 1); see also United States v. Patillar, 8-CR-197-001-JHP (N.D. Okla. April 29, 2009). Petitioner was sentenced to 300 months of imprisonment, consisting of 180 months as to Count One and 120 months as to Count Two, to be served consecutively. (Doc. 13, at Ex. 2, at 2). Upon his motion (id. at Ex. 3) and pursuant to 18 U.S.C. § 3582(c)(1)(A)(i), the District Court later reduced his sentence to 216 months of imprisonment, consisting of 96 months as to Count One and 120 months as to Count Two, to run consecutively. (Doc. 13, at Ex. 4, at 5); see also United States v. Patillar, 8-CR-197-001-CVE (N.D. Okla. April 29, 2022).
Petitioner does not challenge his convictions or sentence but objects to the calculation and crediting of his sentence by the United States Bureau of Prisons (“BOP”) under the First Step Act of 2018. (Doc. 1, at 1-3; see Doc. 2). Specifically, Petitioner alleges that the BOP and the Warden “failed to timely apply his sentence credits mandated by the First Step Act of 2018.” (Doc. 2, at 3). Petitioner claims that he administratively exhausted his claim before the BOP (Doc. 1, at 2-3); Respondent disputes this claim (Doc. 13, at Ex. 1). Nonetheless, it is not necessary for this court to determine the issue of administrative exhaustion, as there is no credible constitutional claim raised by Petitioner. See Montez v. McKinna, 208 F.3d 862, 866 (10th Cir. 2000).
II. Analysis
A. The First Step Act
In December 2018, Congress passed the First Step Act of 2018, Pub. L. No. 115391, 132 Stat. 5194 (the “FSA”). 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). Second, 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.” 18 U.S.C. § 3632(a)(1). The BOP was also required to determine the type and amount of Evidence-Based Recidivism Reduction (“EBRR”) programming and Programming Activities (“PAs”) appropriate for each prisoner. Id. § 3632(a)(3). The FSA then gave the BOP two years after completing the risk and needs assessment for each prisoner to “phase in” program implementation. Id. § 3621(h)(2)(A). During the two-year phase-in period, the FSA allowed the BOP to begin offering incentives, including time credits towards prerelease custody or supervised release, to prisoners who participated in EBRR programming and PAs. Id. §§ 3621(h)(4), 3632(d)(4)(A). In January 2022, the BOP published its final rule implementing FSA time credit calculation procedures. 28 C.F.R. §§ 523, 541. The BOP subsequently adopted a computerized calculator that automatically calculates a prisoner's FSA time credits every 30 days:
FTCs are auto-calculated based on 30-day increments in earning status. Partial credit will not be awarded. FTCs will be credited on a monthly basis agency-wide, as well as during the inmate's regularly scheduled Program
Reviews, based on a completed 30-day period. No FTCs will post to the inmate's record if he/she has not accrued 30 days in earning status.See Program Statement No. 5410.01, U.S. Dep't of Just., Fed. Bureau of Prisons, First Step Act of 2018 - Time Credits: Procedures for Implementation of 18 U.S.C. § 3632(d)(4) (Nov. 18, 2022), at 11.
https://www.bop.gov/policy/progstat/541001.pdf (last visited May 26, 2023).
Petitioner claims that the BOP “has failed to apply his ‘Earned Time' credits for [EBRR] under the First Step Act,” that “the BOP should have given him credit for his participation in various training programs, and that if those sentence credits were applied pursuant to the clear language of [the] FSA, he would be eligible for immediate release.” (Doc. 2, at 4). He argues that because he “was not incarcerated until after the enactment of the FSA, has maintained a MINIMUM PATTERN score, [and] has a flawless institutional record,” he is “therefore eligible to receive the maximum amount of sentence credits, twelve (12) months.” (Id. at 5).
B. Petitioner is Not Eligible for Time Credits Under the First Step Act.
Petitioner is ineligible for relief under the FSA. The FSA discusses time credits:
In general. A prisoner, except for an ineligible prisoner under subparagraph (D), who successfully completes evidence-based recidivism reduction programming or productive activities, shall earn time credits as follows:
(i) A prisoner shall earn 10 days of time credits for every 30 days of successful participation in evidence-based recidivism reduction programming or productive activities.
(ii) A prisoner determined by the Bureau of Prisons to be at a minimum or low risk for recidivating, who, over 2 consecutive assessments, has not increased their risk of recidivism, shall earn an additional 5 days of 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) (emphasis added). Subparagraph (D) provides:
Ineligible prisoners. A prisoner is ineligible to receive time credits under this paragraph if the prisoner is serving a sentence for a conviction under any of the following provisions of law:
...
(xxii) Section 924(c), relating to unlawful possession or use of a firearm during and in relation to any crime of violence or drug trafficking crime. 18 U.S.C. § 3632(d)(4)(D) (emphasis added).
Petitioner is currently incarcerated, in part, due to his conviction on Count Two under 18 U.S.C. § 924(c). See above, Section I. And although Count One is not specifically enumerated in Subparagraph (D), “[m]ultiple terms of imprisonment ordered to run consecutively or concurrently shall be treated for administrative purposes as a single, aggregate term of imprisonment.” 18 U.S.C. § 3584(c).
Thus, when determining a prisoner's eligibility under the First Step Act, the BOP must consider all of a prisoner's consecutive sentences. If a prisoner is serving multiple, consecutive sentences, and one such offense is among the FSA's enumerated disqualifying offenses, as is the case here, then the prisoner is ineligible to earn FSA time credits.Martinez v. Rosalez, 2023 WL 2904579, at *4 (W.D. Tex. Apr. 10, 2023), report and recommendation adopted, 2023 WL 3441566 (W.D. Tex. May 12, 2023); see also Goodman v. Sage, 2022 WL 18028148, at *3 (M.D. Pa. Dec. 30, 2022) (rejecting argument that consecutive sentences “should be treated in a bifurcated manner for FSA eligibility purposes” and concluding that petitioner was ineligible to receive FSA time credits because he was serving a concurrent sentence for a disqualifying offense “as part of his ‘single, aggregate term of imprisonment'”); Sok v. Eischen, 2022 WL 17156797, at *6 (D. Minn. Oct. 26, 2022) (“The BOP's aggregation of Petitioner's sentences is not only a reasonable interpretation of § 3632(d)(4)(D), but said aggregation is, in fact, required.”).
Petitioner is thus ineligible for time credits under the First Step Act of 2018, and his Petition should be denied.
III. Recommended Ruling and Notice of Right to Object.
For the reasons discussed above, the undersigned recommends that the Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2241 be DENIED as Petitioner is ineligible under the FSA. Petitioner is advised of his right to object to this Report and Recommendation by June 16, 2023, in accordance with 28 U.S.C. § 636 and Fed.R.Civ.P. 72. Petitioner is further advised that failure to make timely objection to this Report and Recommendation waives his right to appellate review of both factual and legal issues contained herein. Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).
This Report and Recommendation disposes of all matters referred to the undersigned Magistrate Judge and terminates the referral unless and until the matter is rereferred.
ENTERED