Humberto Angulo Mero, Plaintiff v. Warden, FCI Berlin, Defendant
This text of 2023 DNH 097 (Humberto Angulo Mero, Plaintiff v. Warden, FCI Berlin, Defendant) is published on Counsel Stack Legal Research, covering District Court, D. New Hampshire primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Humberto Angulo Mero, Plaintiff
v. Case No. 23-cv-155-SM Opinion No. 2023 DNH 097
Warden, FCI Berlin, Defendant
O R D E R
Humberto Angulo Mero (“Mero”) is a federal prisoner
currently being held at the Federal Correctional Institution in
Berlin, New Hampshire. He petitions the court pursuant to 28
U.S.C. § 2241, saying the Bureau of Prisons (“BOP”) has
improperly classified him as “ineligible” to apply time credits
he has earned under the First Step Act and, therefore,
incorrectly calculated his projected release date. He seeks an
order directing the BOP to properly account for those time
credits and to amend his projected release date by one year.
The government moves to dismiss Mero’s petition, asserting
that it fails to state any viable claims. Mero has not
responded, likely because he realizes those claims are now moot.
For the reasons discussed, the government’s motion to dismiss is
granted. Discussion
Mero is citizen of Ecuador, currently serving a 98-month
term of imprisonment, with no term of supervision. He is the
subject of an Immigration and Customs Enforcement (“ICE”)
detainer that was lodged against him in July of 2019. With the
benefit of good time credits, his anticipated “Final Statutory
Release Date” is September 24, 2025. See Sentence Monitoring
Computation Data (document no. 5-3) at 1. None of that is in
dispute.
In his petition, Mero asserts that the BOP is improperly
preventing him from applying earned FSA time credits toward
“early release” because he is subject to an ICE detainer. 1 While
that was once the case, it is no longer true. As discussed in
several prior orders of this court, the BOP was, for a time,
precluding inmates subject to ICE detainers from applying earned
FSA time credits toward early release to supervision. But, on
February 6, 2023, the BOP amended its procedures for
implementing the First Step Act. Among other things, it removed
language from the prior policy that prohibited prisoners subject
1 Because Mero’s petition is unclear, the court will assume that he is challenging his eligibility for early release to both supervision and prerelease custody.
2 to ICE detainers from applying FSA time credits toward an early
release to supervision. See U.S. Dept. of Justice, Bureau of
Prisons, Program Statement 5410.10 CN-1 at 2 (Feb. 6, 2023). 2
The same is true with respect to inmates subject to
detainers seeking early release to prerelease custody. On March
10, 2023, the BOP modified its position again, this time
determining that inmates subject to detainers (but not final
orders of removal) could apply FSA time credits toward
prerelease custody. See U.S. Dept. of Justice, Bureau of
Prisons, Program Statement 5410.10 CN-2 (March 10, 2023).
Subsequently, the BOP clarified that change in policy with an
internal memorandum, “advising that FSA time credits will be
applied in all cases consistent with 18 U.S.C. § 3624(g),
including individuals with unresolved pending charges and/or
detainers.” See Oprea v. Warden, FCI Berlin, No. 23-cv-141-SM,
Affidavit of Robert Rouleau (document no. 9-1) at para. 17.
And, on June 13, 2023, the BOP issued “Guidance Regarding the
Application of First Step Act Earned Time Credits to Pre-release
Custody for Individuals with Detainers or Unresolved Pending
Charges.” Id. at para. 18.
2 Parenthetically, the court notes that because Mero was not sentenced to serve a term of supervised release, he cannot be released early to supervision. See 18 U.S.C. § 3624(g)(3). See also 28 C.F.R. § 523.44(d).
3 Consequently, otherwise qualified inmates who are subject
to ICE detainers (but not final orders of removal) are now
permitted to apply earned FSA time credits toward early release
to prerelease custody and supervised release. See, e.g., Bello-
Arias v. Warden, FCI Berlin, 2023 DNH 043, 2023 WL 3043271, at
*1 (D.N.H. Apr. 21, 2023); Portocarrero Montano v. Warden, FCI
Berlin, 2023 DNH 059, 2023 WL 3572791, at *1 (D.N.H. May 15,
2023). See generally 18 U.S.C. § 3632(d)(4)(E)(i).
Conclusion
In light of the recent BOP policy changes, Mero’s petition
for habeas corpus relief is moot. The government’s motion to
dismiss (document no. 5) is granted and the petition (document
no. 1) is dismissed. 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
August 14, 2023
cc: Humberto Angulo Mero, pro se Terry L. Ollila, AUSA
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2023 DNH 097, Counsel Stack Legal Research, https://law.counselstack.com/opinion/humberto-angulo-mero-plaintiff-v-warden-fci-berlin-defendant-nhd-2023.