United States District Court, W.D. Washington, Seattle
REPORT AND RECOMMENDATION
A. TSUCHIDA CHIEF UNITED STATES MAGISTRATE JUDGE
Sean Johnston is currently serving the remainder of his
sentence in the community at a half-way house, with a
projected release dated of July 8, 2019. Dkt. 1 at 3; Dkt.
42, United States v. Sean Johnston, No.
11-cr-5486-BHS. Mr. Johnston requests the Court to issue an
order: (1) directing the Bureau of Prisons
(“BOP”) to recalculate his good time credits
under the First Step Act of 2018, which amended 18 U.S.C.
§ 3624(b) and permits federal inmates to earn up to 54
days of good time credit for each year of the sentence
imposed, and (2) declaring that this new calculation governs
his release date. See Dkt. 1 at 6. If the requested
relief is granted, Mr. Johnston contends he should be
immediately released because with the additional good time
credit, his release date would have been April 29, 2019.
Id. at 3.
government contends Mr. Johnston's petition is premature
and unripe as the provision of the First Step Act under which
Mr. Johnston seeks relief has not yet taken effect and will
not take effect until “the date that the Attorney
General completes and releases the risk and needs assessment
system.” Dkt. 6 at 3. Other district courts that have
considered petitions alleging claims similar to Mr.
Johnston's, have denied relief because the amendment has
not yet taken effect. See Dkt. 6, p. 5 (and cases
cited therein). The government also contends relief is not
appropriate as Mr. Johnston failed to exhaust his
administrative remedies. Id.
Johnston's contention that the 54 days of good time
credit an inmate may earn under the First Step Act is
unrelated to the completion of the risk and needs assessment
system, has merit. However, the Court is not in a position to
provide the relief Mr. Johnston requests where the language
of the First Step Act delays implementation of the 54 days of
good time credit, and where there is nothing establishing
Congress intended to grant inmates 54 days of good time upon
the First Step Act's effective date of December 21, 2018.
The undersigned thus recommends dismissal of Mr.
Johnston's petition because the provision of the First
Step Act under which he seeks relief has not yet taken
effect, but does not recommend dismissal on the grounds that
his petition was brought prematurely or for failure to
Mr. Johnston's Term of Imprisonment
his indictment in October 2011, Mr. Johnston pleaded guilty
to possession of a stolen firearm, in violation of 18 U.S.C.
§§ 922(j) and 922(a)(2); and possession of a
firearm in furtherance of drug trafficking in violation of 18
U.S.C. § 924(c)(1)(A). See United States v. Sean
Johnston, 11-cr-5486-BHS, Dkt. 35. The Honorable
Benjamin H. Settle sentenced Mr. Johnston to 120 months of
imprisonment to be followed by five months of supervised
release. Mr. Johnston's current projected release date is
July 8, 2019, and he is currently serving the last of his
sentence at the Residential Reentry Center in Seattle,
Washington, under the custody and control of the BOP.
Id. at Dkt. 42.
March 17, 2019, Mr. Johnston filed this habeas petition,
alleging that he is being unlawfully deprived of liberty
because the BOP has not recalculated his good time credit
consistent with the First Step Act. Dkt. 5. Because Mr.
Johnston's habeas petition is one of a growing number of
§ 2241 habeas petitions recently filed by federal
prisoners seeking release prior to July 19, 2019,
Court requested submission of written briefing and
specifically requested the parties to address: (1) why the
Court cannot grant the relief requested when the original
congressional intent of 18 U.S.C. § 3624(b) was to grant
a prisoner serving a sentence of more than one year, good
time credits of 54 days per year; (2) whether petitioner is
excused from exhausting his administrative remedies; (3)
whether the “risk and needs assessment” of
Section 101(a) of the First Step Act is relevant to the
BOP's calculation of good time credits; and (4) whether
the Court may make factual findings to determine if
petitioner “has displayed exemplary compliance with
institutional disciplinary regulations” under 18 U.S.C.
§ 3624(b)(1). Dkt. 5 at 2. In addition to considering
the parties' briefs (Dkts. 6, 7), the Court heard oral
argument on May 20, 2019 (Dkt. 9), and considered Mr.
Johnston's Statement of Supplemental Authorities (Dkt.
History and Enactment of the First Step Act
federal statutes, a term of imprisonment is satisfied through
actual time in custody plus good time credits. 18 U.S.C.
§ 3624(a) and (b). The Sentencing Reform Act of 1984
eliminated the parole system and sharply cut back on the rate
at which federal prisoners could earn good time credit,
providing in § 3624(b) that prisoners could receive
“credit toward the service of the prisoner's
sentence, beyond the time served, of up to 54 days at the end
of each year of the prisoner's term of
imprisonment.” The BOP calculated the good conduct
earned based on actual time served in prison, not the length
of the imposed prison sentence. Barber v. Thomas,
560 U.S. 474, 476-79 (2010). This resulted in prisoners
effectively earning 47 days per year of good conduct credit
instead of a full 54 days, because a prisoner is unable to
earn a full year's worth of good credit in his final year
of incarceration assuming it is a partial year of
confinement. Id. The Ninth Circuit upheld this
computation in Pacheco-Camacho v. Hood, 272 F.3d
1266, 1268 (9th Cir. 2001), and the Supreme Court approved
the 47-day formula using time of actual custody.
Barber, 560 U.S. at 492.
after Barber, the Department of Justice and the BOP
supported legislation that would shift the 54-day calculation
from actual time served to the sentence imposed, thereby
increasing the maximum available good time credits from 47 to
54 days per year. See Hearing on the Oversight of
the Federal Bureau of Prisons Before the Subcomm. on Crime,
Terrorism, Homeland Security and Investigations of the H.
Comm. on the Judiciary, 113th Cong., at 23-24 (2013)
(Statement of Charles E. Samuels, Jr. Director, Federal
Bureau of Prisons). The provision was included in the First
Step Act, which was signed into law on December 21, 2018.
of the First Step Act, entitled “Recidivism Reduction,
” consists of seven sections. The bulk of the title is
set out in Section 101, which contains two subsections, each
amending a separate statute.
102(a) amends 18 U.S.C. § 3621 to provide for
implementation of a risk and needs assessment system
(referred to as the “System” within the statute)
to be developed in accordance with Section 101. The risk and
needs assessment system shall (1) determine the recidivism
risk level (minimum, low, medium, or high) of each prisoner
at intake; (2) assess and determine the risk of violent or
serious misconduct of each prisoner; (3) determine the type
and amount of programming for each prisoner and assign
programming accordingly; (4) reassess each prisoner
periodically and adjust programming assignments accordingly;
(5) reassign prisoners to appropriate programs based on
revised determinations; (6) determine when to provide
incentives and rewards for successful participation in
programming or productive activities; and (7) determine when
a prisoner is ready to transfer into prerelease custody or
supervised release. Pub. L. 115-391, § 101, 132 Stat.
5194, 5195-5208 (2018) (promulgating 18 U.S.C. §§
3631-3635); Staff of S. Comm. on the Judiciary, 115th Cong.,
S.3649, The First Step Act Section by-Section Summary, at 3
(Nov. 15, 2018).
Attorney General has 210 days after enactment (December 21,
2018) within which to develop and publicly release the risk
and needs assessment system. 132 Stat. at 5196 (promulgating
18 U.S.C. § 3632). Within 180 days after that, the
Director of the BOP must assess each prisoner and begin to
provide appropriate programming. 132 Stat. at 5208
(promulgating 18 U.S.C. § 3621(h)). There is a two-year
“phase-in” for the BOP to make programming
available to all prisoners. 132 Stat. at 5209.
102(b) makes two amendments to 18 U.S.C. §
3624. As relevant to Mr. Johnston's petition,
Subsection 102(b)(1) amends 18 U.S.C. §
3624(b)(1) to change the method by which the BOP is to
calculate good time credits (hereinafter, “the good
time fix amendment”):
Section 3624 of title 18, United States Code, is amended-
(A) in subsection (b)(1)-
(i) by striking ‘‘, beyond the time served, of up
to 54 days at the end of each year of the prisoner's term
of imprisonment, beginning at the end of the first year of
the term, '' and inserting ‘‘of up to 54
days for each year of the prisoner's sentence imposed by
the court, ''; and
(ii) by striking ‘‘credit for the last year or
portion of a year of the term of imprisonment shall be
prorated and credited with in the last six weeks of the
sentence'' and inserting ‘‘credit for the
last year of a term of imprisonment shall be credited on the
first day of the last year of the term of
§ 102(b)(1)(A), 132 Stat. at 5210. The Senate's
Section-by-Section Report describes the intent of these
Amends Section 3624 of title 18 of the U.S. Code to clarify
congressional intent behind good time credit, which is earned
for “exemplary compliance with institutional
disciplinary regulations, ” to ensure that a prisoner
who is serving a term of imprisonment of more than 1 year may
receive good time credit of 54 days per year toward the
service of the prisoner's sentence. Also establishes
eligibility for prerelease custody or supervised release for
risk and needs assessment system participants. Allows such
eligible prisoners to be placed in home confinement or
residential reentry centers, subject to the conditions
required by the Act and the BOP Director, or transferred to
begin a term of supervised release; a violation of the
conditions of prerelease custody may result in revocation and
require the violator to return to prison. Requires the
Attorney General, in consultation with the Assistant Director
for the Office of Probation and Pretrial Services, to issue
guidelines for BOP to use in determining the appropriate type
of prerelease custody or supervised release and level of
supervision required, as well as consequences for violations
of prerelease custody conditions. Requires the BOP Director
to enter into agreements with the United States Probation and
Pretrial Services ...