United States District Court, N.D. Ohio, Eastern Division
MEMORANDUM OF OPINION AND ORDER [RESOLVING ECF NO.
Y. Pearson, United States District Judge
se Petitioner James Hamm has filed a Petition for a Writ
of Habeas Corpus under 28 U.S.C. § 2241. ECF
No. 1. Petitioner is a federal prisoner (#56651-060), serving
a sentence in connection with United States of America v.
Hamm, 1:10-CR-509 (Gaughan, J.). He is currently placed
at Oriana House, Inc., in Cleveland, for prerelease custody
(ECF No. 1 at PageID#: 1), and he is scheduled to be
released on October 30, 2019. Fed. Bur. Prisons,
https://www.bop.gov/inmateloc/ (last visited June
28, 2019). Petitioner seeks recalculation of his good-time
credits pursuant to the First Step Act. ECF No. 1
(supplemented at ECF No. 2).
after the filing of the habeas corpus petition, the
Court undertook a preliminary review of the petition to
determine “[i]f it plainly appears from the petition
and any attached exhibits that the petitioner is not entitled
to relief.” 28 U.S.C. § 2243; Rule 4 of the
Rules Governing Habeas Corpus Cases Under Section 2254
(applicable to petitions under § 2241 pursuant to Rule
1(b)). Perceiving room for disagreement about how to
interpret the relevant statute, the Court directed the Bureau
of Prisons (“BOP”) to respond on an accelerated
briefing schedule. ECF No. 3. The BOP responded and
moved to dismiss the petition (ECF No. 5), and
Petitioner declined to file a reply within the ten-day period
allotted by the Court (see ECF No. 3).
following reasons, the BOP's motion to dismiss is
granted, and Petitioner's habeas corpus petition
is dismissed without prejudice.
102(b)(1)(A) of the First Step Act amended 18 U.S.C. §
3624(b) to alter the availability of good-time credit for
federal inmates. Specifically, it increased the maximum
allowable good-time credit from 47 to 54 days per year, and
it directed the BOP to calculate good-time credit from the
beginning of the final year of the sentence rather than
prorating at the end. First Step Act, Pub. L. No.
115-391, § 102(b)(1)(A), 132 Stat. 5194 (2018).
Subparagraph 102(b)(1)(B) of the First Step Act developed a
system of earned-time transfer credits. Earned-time transfer
credits are to be awarded as a benefit of inmates'
participation in recidivism-reduction programming. Under
Subparagraph 102(b)(1)(B), the BOP can place an
“eligible prisoner” in prerelease custody outside
of prison, or on supervised release up to 12 months prior to
the end of the sentence. Id., § 102(b)(1)(B).
implementation of certain portions of the First Step Act, the
Attorney General is directed to create a “risk and
needs assessment system, ” to be completed and released
no later than 210 days from the date of the statute's
enactment; that is, July 19, 2019. Id., §
101(a); 18 U.S.C. § 3632(a). The risk and needs
assessment system is meant to assess inmates' risk of
recidivism and develop guidance for managing and reducing
following the good-time credit provision and earned-time
transfer credit provisions (Subparagraphs 102(b)(1)(A) and
102(b)(1)(B), respectively) is Paragraph 102(b)(2), titled
“EFFECTIVE DATE, ” which reads, “The
amendments made by this subsection shall take effect
beginning on the date that the Attorney General completes and
releases the risk and needs assessment system . . . as added
by section 101(a) of this Act.” Pub. L. No. 115-391,
argues that the delayed effective date in Paragraph 102(b)(2)
should apply only to the earned-time transfer credit
amendment described in Subparagraph (b)(1)(B) and not to the
good-time credit amendment described in Subparagraph
(b)(1)(A). ECF No. 2 at PageID#: 18-23. He argues that,
whereas the earned-time transfer credit system is novel and
complex and requires substantial regulatory guidance to be
implemented by the BOP, the good-time credit amendment is
ministerial, and a risk and needs assessment system does
nothing to aid its implementation. Congress had no reason, he
posits, to delay the effective date of the good-time credit
amendment in Subparagraph 102(b)(1)(A).
the logical appeal of Petitioner's position, it flatly
contradicts the plain text of the statute. Paragraph
102(b)(2) unequivocally delays the effective date of the
subsection (that is, Subsection
102(b)) until the Attorney General completes and
releases the risk and needs assessment system. Pub.
L. No. 115-391, § 102(b)(2). Even if the statute
was drafted inartfully, as Petitioner suggests, it falls to
Congress, not the Court, to amend it. United States v.
Lorenz, 2019 WL 20802280, at *1, *1 n.10 (N.D. Ohio May
13, 2019) (Gwin, J.) (“[Petitioner]'s
interpretative arguments . . . would require the Court to
rewrite the law.”); see Levan v. United
States, No. 4:19-CV-831, ECF No. 7 at PageID#: 105 (N.D.
Ohio June 3, 2019) (Polster, J.) (“Congress was
explicit that the delayed effective date applies to
all amendments made to [Subsection 102(b)].”).
Because the Attorney General has not yet completed and
released the risk and needs assessment system described in
Subsection 101(a), the good-time credit amendment has not yet
taken effect, and the habeas corpus petition is
purports to identify constitutional concerns with this
plain-text interpretation. As Judge Gwin pointed out in a
recent case, however, the good-time recalculation delay does
not threaten the constitutional guarantees of equal
protection or due process. “[T]o state an equal
protection claim, [the petitioner] must first show that the
law treats him differently as compared to other similarly
situated persons.” Lorenz, 2019 WL 2082280, at
*1 (footnote reference omitted). As in Lorenz,
Petitioner in this case makes no real effort to show that he
is treated differently from others who are similarly
situated. “Nor could he do so as the delay applies to
everyone eligible for good time credit.” Id.
Petitioner's due process argument similarly fails.
“[T]he First Step Act does not impose a liberty
deprivation, it merely delays a liberty restoration
[Petitioner] had no constitutional right to in the first
place. If Congress was under no obligation to increase the
good time credit at all, surely it is not under a
constitutional obligation to increase it immediately.”
cutoff date for the completion and release of the Attorney
General's risk and needs assessment system is fast
approaching. When that assessment system is completed,
Petitioner may make an administrative request with the BOP
for recalculation of good-time credit.Without the
benefit of the BOP's response to such a request, however,
the Court is not in a position to discern whether Petitioner
merits immediate release. United States v. Cobleigh,75 F.3d 242, 251 (6th Cir. 1996) (The issue of sentencing
credit “is not ripe for review until the Bureau of
Prisons has ruled on a defendant's request for