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Johnston v. Jacquez

United States District Court, W.D. Washington, Seattle

June 4, 2019

SEAN JOHNSTON, Petitioner,
v.
ISRAEL JACQUEZ, CHRISTINE HILLIARD, Respondents.

          REPORT AND RECOMMENDATION

          BRIAN A. TSUCHIDA CHIEF UNITED STATES MAGISTRATE JUDGE

         Petitioner 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.

         The 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.

         Mr. 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 exhaust.

         BACKGROUND

         A. Mr. Johnston's Term of Imprisonment

         Following 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.

         On 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, [1] the 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. 11).

         B. History and Enactment of the First Step Act

         Under 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.

         Shortly 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).[2] The provision was included in the First Step Act, which was signed into law on December 21, 2018.

         Title I 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.

         Subsection 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).

         The 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.

         Subsection 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 imprisonment[.]''

§ 102(b)(1)(A), 132 Stat. at 5210. The Senate's Section-by-Section Report describes the intent of these amendments:

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 ...

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