Jose Jacob Portocarrero Montano, Petitioner v. Warden, FCI Berlin, Respondent

2023 DNH 059

• Court: District Court, D. New Hampshire
• Decided: May 15, 2023
• Docket: 23-cv-120-SM
• Status: Published

Opinion

UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Jose Jacob Portocarrero Montano, Petitioner

v. Case No. 23-cv-120-SM Opinion No. 2023 DNH 059

Warden, FCI Berlin, Respondent

O R D E R

Jose Jacob Portocarrero Montano (“Portocarrero”) 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 Portocarrero 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,

Portocarrero has received all of the relief he sought 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.

Portocarrero is currently serving a 108-month term of

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

release. He is the subject of an Immigration and Customs

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

August of 2018. With the benefit of good time credits, his

anticipated “Final Statutory Release Date” is August 30, 2025.

See Sentence Monitoring Computation Data (document no. 5-3) at

1. None of that is in dispute.

2 In addition to good time credits, Portocarrero has also

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

may be applied toward his early transfer to supervised release.

See FSA Time Credit Assessment as of March 25, 2023 (document

no. 5-4) 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, Portocarrero’s “Projected Release Date” should

be August 30, 2024 - that is, 365 days earlier than his “Final

Statutory Release Date.” But, he says the BOP is refusing to

apply those FSA time credits and, therefore, his projected

release is off by one year.

Portocarrero 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 Portocarrero who are

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

3 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

Portocarrero’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 25, 2023, at 1.

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

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

August 30, 2024 (rather than August 30, 2025). See Sentence

Monitoring Computation Data at 1.

Conclusion

For the foregoing reasons, it is plain that Portocarrero

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

no longer any case or controversy. His petition seeking habeas

corpus relief (document no. 1) is, therefore, dismissed as moot.

The government’s motion to dismiss (document no. 5) is granted.

The Clerk of Court shall enter judgment in accordance with

this order and close the case.

4 SO ORDERED.

____________________________ Steven J. McAuliffe United States District Judge

May 15, 2023

cc: Jose Jacob Portocarrero Montano, pro se Terry L. Ollila, Esq.