Italo Wilian Tigua Merchan, Petitioner v. Warden, FCI Berlin, Respondent

2023 DNH 052

• Court: District Court, D. New Hampshire
• Decided: May 9, 2023
• Docket: 23-cv-69-SM
• Status: Published

Opinion

UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Italo Wilian Tigua Merchan, Petitioner

v. Case No. 23-cv-69-SM Opinion No. 2023 DNH 052

Warden, FCI Berlin, Respondent

O R D E R

Italo Wilian Tigua Merchan 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.

When Tigua Merchan filed his petition, his claims had

merit. But, shortly thereafter, the BOP properly credited him

with earned FSA time credits and advanced his “projected

release” date by one year (the maximum permitted). Accordingly, Tigua Merchan has received all the relief he seeks and his

petition is now moot.

Discussion

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). 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.

Tigua Merchan is currently serving a 120-month term of

imprisonment, to be followed by a 10-year term of supervised

release. He is the subject of an Immigration and Customs

Enforcement (“ICE”) detainer that was lodged against him in

October of 2017. With the benefit of good time credits, his

anticipated “Final Statutory Release Date” is April 21, 2026.

See Sentence Monitoring Computation Data (document no. 6-3) at

1. None of that is in dispute.

2 In addition to good time credit, Tigua Merchan has also

earned a substantial number of FSA time credits, 365 of which

may be applied toward early transfer to supervised release. See

FSA Time Credit Assessment as of March 25, 2023 (document no. 6-

4) at 1. 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 transfer to supervised release).

So, factoring in both his good time credits and his FSA time

credits, Tigua Merchan’s “Projected Release Date” should be

April 21, 2025 - that is, 365 days earlier than his “Final

Statutory Release Date.” But, says Tigua Merchan, the BOP is

refusing to apply those FSA time credits and, therefore, his

projected release is off by one year.

Tigua Merchan was, for a time, correct. 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 to ICE

detainers from applying FSA time credits toward an early release

to prerelease custody or supervised release. See U.S. Dept. of

Justice, Bureau of Prisons, Program Statement 5410.10 CN-1 at 2

(Feb. 6, 2023). 1 Consequently, inmates like Tigua Merchan who

1 Available at: https://www.bop.gov/PublicInfo/execute/ policysearch?todo=query&series=5000).

3 are subject to ICE detainers (but not final orders of removal)

are now permitted to apply earned FSA time credits toward

prerelease custody or supervised release. See generally 18

U.S.C. § 3632(d)(4)(E)(i).

Following that change in policy, the BOP recalculated Tigua

Merchan’s Sentence Monitoring Computation Data. The BOP’s

records now accurately show that he is eligible both to earn and

to apply earned FSA time credits toward early release. See FSA

Time Credit Assessment dated March 23, 2023, at 1.

Additionally, the BOP has applied the maximum number of FSA time

credits (365) to calculate his “Projected Release Date” of April

21, 2025 (rather than April 21, 2026). See Sentence Monitoring

Computation Data at 1.

Conclusion

For the foregoing reasons, it is plain that Tigua Merchan

has received all the relief sought in his petition and there is

no longer any case or controversy. His petition (document no.

1) is, therefore, dismissed as moot. The government’s motion

for summary judgment (document no. 6) is likewise denied as

moot.

4 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

May 9, 2023

cc: Italo Wilian Tigua Merchan, pro se Heather A. Cherniske, Esq.