United States District Court, N.D. Ohio, Eastern Division
MEMORANDUM OPINION AND ORDER
HONORABLE SARA LIOI UNITED STATES DISTRICT JUDGE.
Richard McKee (“McKee”) filed a pro se
petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2241. (Doc. No. 1.) The Office of the Federal Public
Defender has since entered an appearance and filed a
memorandum in support of McKee's petition. (Doc. No.
2.)By his petition and memorandum in support,
McKee seeks to compel the Bureau of Prisons
(“BOP”) to immediately recalculate his sentence
to correct his award of good time credit in accordance with
the First Step Act of 2018, P.L. 115-391.
is a federal prisoner who is currently serving a term of
imprisonment at the Federal Correctional Institution-Elkton,
located in Lisbon, Ohio. McKee is projected to be released
from custody on June 23, 2019. See
https://www.bop.gov/inmateloc/ (lasted visited on June
18, 2019). In his petition, McKee argues that the BOP should
be compelled to immediately recalculate his sentence to allow
him to take advantage of recent amendments affecting the
manner in which federal inmates accumulate good time credits.
The First Step Act, which was enacted on December 21, 2018,
amended 18 U.S.C. § 3624(b)(1) to change the manner in
which such credits are calculated by increasing the maximum
allowable good time credit from 47 to 54 days per year.
According to McKee, application of the new amendments would
result in an earlier expected release date. While McKee
acknowledges that he has bypassed the BOP's
administrative review process and sought immediate relief
from this Court, he insists that if his sentence is not
immediately recalculated, he will not be able to take
advantage of the benefits afforded by the amendments to the
First Step Act.
petition is DENIED. First, McKee admits that he has not taken
steps to exhaust his administrative remedies available within
the BOP. Federal prisoners have a specific administrative
remedy procedure by which they can present their claims to
prison officials. 28 C.F.R. §§ 542.13, et
seq. (the administrative remedy program allows inmates
to seek administrative review of an issue relating to any
aspect of an inmate's confinement); see Luedtke v.
Berkebile, 704 F.3d 465, 466 (6th Cir. 2013);
Fazzini v. Ne. Ohio Corr. Ctr., 473 F.3d 229, 231
(6th Cir. 2006). The BOP administrative review is initiated
when an inmate seeks informal resolution at the federal
facility where he is confined, and is completed when the
Office of General Counsel issues its final decision,
following appeal to the warden and the BOP. 28 C.F.R.
§§ 542.13, 524.14, 524.15, 542.15(a). Before he may
seek habeas relief under § 2241, a prisoner must first
exhaust his administrative remedies with the BOP.
Luedtke, 704 F.3d at 466.
exhaustion requirement ensures that the BOP has an
opportunity to review and potentially revise its decisions
before litigation is commenced. This preserves judicial
resources and the autonomy of the administrative process. It
also ensures that the court reviewing the agency's final
decision is doing so on the basis of a completely developed
record. Noriega-Lopez v. Ashcroft, 335 F.3d
874, 881 (9th Cir. 2003); Moscato v. Fed. Bureau of
Prisons, 98 F.3d 757, 761-62 (3d Cir. 1996). Because
McKee concedes that he did not pursue, much less exhaust, his
administrative remedies prior to filing his petition,
dismissal of his petition is warranted for this reason alone.
See, e.g., Sennett v. Quintana, No. 5:19-085-JMH,
2019 WL 1085173, at *2 (E.D. Ky. Mar. 7, 2019).
even if McKee had exhausted his administrative remedies, his
petition would be subject to dismissal for the additional
reason that the relief he seeks is not yet available. As set
forth above, the amendments to the First Step Act will
accelerate the manner in which inmates earn good time credits
against their prison sentence, effectively abrogating
Barber v. Thomas, 560 U.S. 474, 130 S.Ct. 2499, 177
L.Ed.2d 1 (2010). But this provision has yet to take effect.
Section 102(b)(2) of the First Step Act specifically provides
that the amendments made in subsection 102(b) take effect
only when the Attorney General completes the “risk and
needs assessment system” required by Section 101(a) of
the Act. Section 101(a) does not require completion of the
system until 210 days after the Act's enactment. Thus,
Section 102(b)(1) will not take effect until July 2019. The
fact that McKee is set to be released in June 2019 does not
change the fact that the Court cannot afford McKee relief
that is not yet available. See, e.g., Sheppard v.
Quintana, No. 5:19-084-DCR, 2019 WL 1103391 (E.D. Ky.
Mar. 8, 2019) (rejecting similar argument and denying as
premature request for relief under § 102(b)(1)).
of the foregoing reasons, the petition for a writ of habeas
corpus (Doc. No. 1) is DISMISSED. Further, the Court
CERTIFIES, pursuant to 28 U.S.C. § 2255(a)(3), that an
appeal from this decision could not be taken in good faith,
and that there is no basis upon which to issue a certificate
of appealability. 28 U.S.C. § 2253; Fed. R. App. P.
IS SO ORDERED
 This subsequent filing does not change
the Court's analysis of ...