UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Dione Taylor, Petitioner
v. Case No. 23-cv-150-SM Opinion No. 2023 DNH 073
Warden, FCI Berlin, Respondent
O R D E R
Dione Taylor is a federal prisoner currently being held at
the Federal Correctional Institution in Berlin, New Hampshire.
Pursuant to 28 U.S.C. § 2241, he petitions the court to direct
the Bureau of Prisons (“BOP”) to amend his projected release
date to account for time credits he has earned under the First
Step Act. Because there are no genuinely disputed material
facts and because, as a matter of law, Taylor is not entitled to
the relief he seeks, the government’s motion for summary
judgment is granted.
Background
There are two ways by which inmates serving federally-
imposed sentences may reduce the amount of time they must serve
in prison. Those serving a term of imprisonment greater than one year may earn “good time” credits for “exemplary compliance
with institutional disciplinary regulations.” 18 U.S.C. §
3624(b)(1). Eligible inmates may also earn “time credits” under
the First Step Act for the successful completion of “evidence-
based recidivism reduction programming or productive
activities.” 18 U.S.C. § 3632(d)(4)(A). This case involves the
latter.
Taylor is currently serving a 120-month term of
imprisonment, to be followed by a three-year term of supervised
release. With the benefit of good time credits, his anticipated
“Final Statutory Release Date” is February 24, 2025. See
Sentence Monitoring Computation Data (document no. 5-1) at 5 of
26. He does not dispute that calculation. He has earned a
number of FSA time credits, 365 of which may (potentially) be
applied toward his early transfer and supervised release. See
FSA Time Credit Assessment as of March 25, 2023 (document no. 5-
1) at 7 of 26. See also 18 U.S.C.A. § 3624(g)(3) (providing
that the BOP may apply no more than 12 months of earned FSA time
credits to advance an inmate’s date of release from prison to
supervised release).
At the moment, however, Taylor is not eligible to apply
earned FSA time credits toward early release because he has,
2 since at least July of 2020, consistently been determined to
pose a “high risk” of recidivism. See Inmate History – Fist
Step (document no. 5-1) at 11-12 of 26. See also 18 U.S.C. §
3624(g)(1)(D) (only inmates determined to be a “minimum” or
“low” risk to recidivate are eligible for early release).
Indeed, because of Taylor’s elevated recidivism risk, the BOP
has not calculated a “projected” early release date for him.
See BOP Program Statement 5410.01, First Step Act of 2018 – Time
Credits: Procedures for Implementation of 18 U.S.C. §
3632(d)(4), Section 10(c), at 16 (“Medium and High PATTERN risk
inmates may earn FTC, but will not receive an estimated FSA
[Projected Released Date]”).
Although his petition is not entirely clear, if liberally
construed it challenges the BOP’s determination that he is
currently “ineligible” under the First Step Act to apply his
earned time credits toward early release. He claims that “if
his FSA time credits were applied, he should be transferred to
prerelease custody in 2023.” Preliminary Review and Order
Directing Service (document no. 2) at 1. See also Exhibit 1 to
Petition (document no. 1-1) at 1 (in which Taylor asserts that
proper calculation and application of his FSA time credits would
result in his “immediate release”).
3 Discussion
Taylor’s petition fails for several reasons. First, he has
failed to fully and properly exhaust available prison
administrative remedies relating to his FSA status. See
Affidavit of Maury Yeakel, Supervisory Correctional Systems
Supervisor (document no. 5-1) at 1, para. 16 (“I reviewed SENTRY
administrative remedy records pertaining to Petitioner.
Petitioner used the administrative remedy process in the past.
However, he has not filed any Requests for Administrative Remedy
or Administrative Appeals related to his risk assessment,
eligibility, or calculation/application of FSA time credits.”).
And, barring unusual circumstances not alleged here, claims that
have not been fully and properly exhausted are subject to
dismissal. See generally Gonzalez v. Yates, 2023 WL 2916677
(E.D. Ark. April 12, 2023) (noting that a prisoner may be
excused from exhausting administrative remedies if his or her
claims raise only legal issues (e.g., proper interpretation of
the FSA) or if the prisoner is near the end of his or her term
of imprisonment and lacks sufficient time to properly exhaust).
But, even if Taylor had fully and properly exhausted his
claims (or if he were excused from doing so because his petition
raises only a legal challenge to the BOP’s interpretation of the
FSA), it is plain that he is not entitled to the relief he
4 seeks. As a preliminary matter, the court notes that Taylor
says he has accrued 2,144 program days under the First Step Act.
See Petition (document no. 1) at para. 13. That appears to be
incorrect. It is, perhaps, because that total impermissibly
takes into account programs in which Taylor participated prior
to the effective date of the First Step Act. See 18 U.S.C. §
3632(d)(4)(B)(i) (“A prisoner may not earn time credits under
this paragraph for an evidence-based recidivism reduction
program that the prisoner successfully completed prior to the
date of enactment of this subchapter.”). See also Exhibit to
Petition (document no. 1-1) at 2 (noting a “start” date of
October 17, 2016 for the accrual of “program days”). The First
Step Act was enacted into law on December 21, 2018. At the
earliest, then, inmates could only begin to accrue “program
days” (and FSA time credits) starting on that date. See 28
C.F.R. § 523.42(b)(2).
According to the BOP’s most recent calculation (which
properly begins on December 21, 2018), Taylor has accrued 1428
program days. Given Taylor’s assessed recidivism risk and the
rate at which he can accumulate FSA time credits, that means he
has earned 470 FSA time credits. See FSA Time Credit Assessment
(March 23, 2023) (document no. 5-1) at 7 of 26. See generally
18 U.S.C. § 3632(d)(4)(A) (providing that a prisoner shall earn
5 10 days of time credits for every 30 days of successful
participation in recidivism reduction programming; prisoners
(unlike Taylor) who are determined to be a minimum or low risk
for recidivating shall earn an additional 5 days of time credits
for every 30 days of successful participation).
Taylor acknowledges (and does not challenge) the fact that
none of his periodic recidivism risk evaluations has placed him
in either the “minimum” or “low” risk categories. See Petition
at para. 13. In fact, dating as far back as July of 2020, all
of his routine assessments have placed him in the “High Risk
Recidivism Level.” See Inmate History – First Step (document
no. 5-1) at 11-12 of 26. Consequently, although Taylor has been
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UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Dione Taylor, Petitioner
v. Case No. 23-cv-150-SM Opinion No. 2023 DNH 073
Warden, FCI Berlin, Respondent
O R D E R
Dione Taylor is a federal prisoner currently being held at
the Federal Correctional Institution in Berlin, New Hampshire.
Pursuant to 28 U.S.C. § 2241, he petitions the court to direct
the Bureau of Prisons (“BOP”) to amend his projected release
date to account for time credits he has earned under the First
Step Act. Because there are no genuinely disputed material
facts and because, as a matter of law, Taylor is not entitled to
the relief he seeks, the government’s motion for summary
judgment is granted.
Background
There are two ways by which inmates serving federally-
imposed sentences may reduce the amount of time they must serve
in prison. Those serving a term of imprisonment greater than one year may earn “good time” credits for “exemplary compliance
with institutional disciplinary regulations.” 18 U.S.C. §
3624(b)(1). Eligible inmates may also earn “time credits” under
the First Step Act for the successful completion of “evidence-
based recidivism reduction programming or productive
activities.” 18 U.S.C. § 3632(d)(4)(A). This case involves the
latter.
Taylor is currently serving a 120-month term of
imprisonment, to be followed by a three-year term of supervised
release. With the benefit of good time credits, his anticipated
“Final Statutory Release Date” is February 24, 2025. See
Sentence Monitoring Computation Data (document no. 5-1) at 5 of
26. He does not dispute that calculation. He has earned a
number of FSA time credits, 365 of which may (potentially) be
applied toward his early transfer and supervised release. See
FSA Time Credit Assessment as of March 25, 2023 (document no. 5-
1) at 7 of 26. See also 18 U.S.C.A. § 3624(g)(3) (providing
that the BOP may apply no more than 12 months of earned FSA time
credits to advance an inmate’s date of release from prison to
supervised release).
At the moment, however, Taylor is not eligible to apply
earned FSA time credits toward early release because he has,
2 since at least July of 2020, consistently been determined to
pose a “high risk” of recidivism. See Inmate History – Fist
Step (document no. 5-1) at 11-12 of 26. See also 18 U.S.C. §
3624(g)(1)(D) (only inmates determined to be a “minimum” or
“low” risk to recidivate are eligible for early release).
Indeed, because of Taylor’s elevated recidivism risk, the BOP
has not calculated a “projected” early release date for him.
See BOP Program Statement 5410.01, First Step Act of 2018 – Time
Credits: Procedures for Implementation of 18 U.S.C. §
3632(d)(4), Section 10(c), at 16 (“Medium and High PATTERN risk
inmates may earn FTC, but will not receive an estimated FSA
[Projected Released Date]”).
Although his petition is not entirely clear, if liberally
construed it challenges the BOP’s determination that he is
currently “ineligible” under the First Step Act to apply his
earned time credits toward early release. He claims that “if
his FSA time credits were applied, he should be transferred to
prerelease custody in 2023.” Preliminary Review and Order
Directing Service (document no. 2) at 1. See also Exhibit 1 to
Petition (document no. 1-1) at 1 (in which Taylor asserts that
proper calculation and application of his FSA time credits would
result in his “immediate release”).
3 Discussion
Taylor’s petition fails for several reasons. First, he has
failed to fully and properly exhaust available prison
administrative remedies relating to his FSA status. See
Affidavit of Maury Yeakel, Supervisory Correctional Systems
Supervisor (document no. 5-1) at 1, para. 16 (“I reviewed SENTRY
administrative remedy records pertaining to Petitioner.
Petitioner used the administrative remedy process in the past.
However, he has not filed any Requests for Administrative Remedy
or Administrative Appeals related to his risk assessment,
eligibility, or calculation/application of FSA time credits.”).
And, barring unusual circumstances not alleged here, claims that
have not been fully and properly exhausted are subject to
dismissal. See generally Gonzalez v. Yates, 2023 WL 2916677
(E.D. Ark. April 12, 2023) (noting that a prisoner may be
excused from exhausting administrative remedies if his or her
claims raise only legal issues (e.g., proper interpretation of
the FSA) or if the prisoner is near the end of his or her term
of imprisonment and lacks sufficient time to properly exhaust).
But, even if Taylor had fully and properly exhausted his
claims (or if he were excused from doing so because his petition
raises only a legal challenge to the BOP’s interpretation of the
FSA), it is plain that he is not entitled to the relief he
4 seeks. As a preliminary matter, the court notes that Taylor
says he has accrued 2,144 program days under the First Step Act.
See Petition (document no. 1) at para. 13. That appears to be
incorrect. It is, perhaps, because that total impermissibly
takes into account programs in which Taylor participated prior
to the effective date of the First Step Act. See 18 U.S.C. §
3632(d)(4)(B)(i) (“A prisoner may not earn time credits under
this paragraph for an evidence-based recidivism reduction
program that the prisoner successfully completed prior to the
date of enactment of this subchapter.”). See also Exhibit to
Petition (document no. 1-1) at 2 (noting a “start” date of
October 17, 2016 for the accrual of “program days”). The First
Step Act was enacted into law on December 21, 2018. At the
earliest, then, inmates could only begin to accrue “program
days” (and FSA time credits) starting on that date. See 28
C.F.R. § 523.42(b)(2).
According to the BOP’s most recent calculation (which
properly begins on December 21, 2018), Taylor has accrued 1428
program days. Given Taylor’s assessed recidivism risk and the
rate at which he can accumulate FSA time credits, that means he
has earned 470 FSA time credits. See FSA Time Credit Assessment
(March 23, 2023) (document no. 5-1) at 7 of 26. See generally
18 U.S.C. § 3632(d)(4)(A) (providing that a prisoner shall earn
5 10 days of time credits for every 30 days of successful
participation in recidivism reduction programming; prisoners
(unlike Taylor) who are determined to be a minimum or low risk
for recidivating shall earn an additional 5 days of time credits
for every 30 days of successful participation).
Taylor acknowledges (and does not challenge) the fact that
none of his periodic recidivism risk evaluations has placed him
in either the “minimum” or “low” risk categories. See Petition
at para. 13. In fact, dating as far back as July of 2020, all
of his routine assessments have placed him in the “High Risk
Recidivism Level.” See Inmate History – First Step (document
no. 5-1) at 11-12 of 26. Consequently, although Taylor has been
able to earn FSA time credits, he is not (currently) eligible to
apply those time credits. See 18 U.S.C. § 3624(g)(1)(D)(ii) (to
be eligible for early release to supervised release based upon
earned FSA time credits, “the prisoner [must have] been
determined under the System to be a minimum or low risk to
recidivate pursuant to the last reassessment of the prisoner.”).
The requirements for early release to prerelease custody are
similar, but slightly more stringent. See 18 U.S.C. §
3624(g)(1)(D)(i)(I) and (II).
6 Should Taylor subsequently be determined to be a minimum or
low recidivism risk, he will then be able to apply earned FSA
time credits toward early release. At this time, however, the
BOP has properly determined that Taylor is not eligible to do
so. See Sentencing Monitoring Computation Data (document no. 5-
1) at 5 (“FSA Eligibility Status is: Ineligible”).
Finally, even if Taylor’s recidivism risk assessment were
sufficiently low to permit him to apply earned time credits
toward early release, he could not yet do so. With the benefit
of accrued good time credits, his anticipated release date is
February 24, 2025. As noted above, Taylor has earned 470 FSA
time credits. But, as of the date on which he filed his habeas
corpus petition (February 21, 2023), Taylor had 734 days
remaining on his prison sentence. Consequently, he is not yet
entitled to apply any FSA time credits toward prerelease custody
or supervised release and his challenge to the BOP’s calculation
of his release date is premature. See 18 U.S.C. § 3624(g)(1)(A)
(“This subsection applies in the case of a prisoner who . . .
has earned time credits under the risk and needs assessment
system developed under subchapter D . . . in an amount that is
equal to the remainder of the prisoner’s imposed term of
imprisonment.”). See also 28 C.F.R. § 523.44(b).
7 In short, eligible inmates can accumulate FSA time credits
throughout their incarceration, but they may only apply those
accumulated time credits toward early release once they are
sufficient in number to meet or exceed the time remaining on the
inmate’s imposed term of imprisonment and the inmate’s assessed
risk of recidivism is sufficiently low. Taylor meets neither of
those prerequisites and his claimed entitlement to “immediate
release” is without merit.
Parenthetically, the court notes that even if Taylor fails
to lower his risk of recidivism to a “minimum” or “low” level,
he might still have an avenue of relief. If he meets the
requirements of 18 U.S.C. § 3624(g)(1)(D)(i)(II)(aa) through
(cc), Taylor could petition the warden to exercise his
discretion to apply Taylor’s earned FSA time credits toward
early release to prerelease custody or supervised release. An
inmate initiates that process by “submitting a BP-A0148, Inmate
Request to Staff, during their regularly scheduled Program
Review.” BOP Program Statement 5410.01, First Step Act of 2018
– Time Credits: Procedures for Implementation of 18 U.S.C. §
3632(d)(4), Section 10(c), at 16.
8 Conclusion
For the foregoing reasons, as well as those set forth in
the government’s memorandum, there are no genuinely disputed
material facts and the government is entitled to judgment as a
matter of law with respect to all claims advanced in Taylor’s
petition. Accordingly, the government’s Motion for Summary
Judgment (document no. 5) is granted and Taylor’s Petition for
Relief under § 2241 (document no 1) is denied.
The Clerk of Court shall enter judgment in accordance with
this order and close the case.
SO ORDERED.
____________________________ Steven J. McAuliffe United States District Judge
June 14, 2023
cc: Dione Taylor, pro se Seth R. Aframe, Esq.