Anderson v. Nash
MEMORANDUM OPINION - Having reviewed and considered the materials in the habeas record and in the underlying criminal record, the Court finds that Mr. Anderson has not exhausted his administrative remedies, and, even if he had, he is not entitled to additional good conduct time. Therefore, the Court denies Mr. Anderson's request for an order directing the BOP to recalculate his good conduct time. By separate order, the Court will dismiss this habeas action without prejudice. Signed by Judge Madeline Hughes Haikala on 1/6/2021. (KEK)
2021 Jan-06 AM 10:33
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
EDWIN MOORE ANDERSON,
CHERON NASH, Warden,
Case No. 1:20-cv-00990-MHH-GMB
This is an action for a writ of habeas corpus pursuant to 28 U.S.C. § 2241.
Petitioner Edwin Moore Anderson filed this action without the help of a lawyer.
(Doc. 1). Mr. Anderson challenges the Bureau of Prisons’ calculation of his good
conduct time. Under 18 U.S.C. § 3624(b), good conduct time is time that a federal
prisoner may receive as a credit against a federal prison sentence to reduce the
overall length of a term of imprisonment. Mr. Anderson is serving an 18-month
term of imprisonment because he violated the terms of supervised release by using
illegal drugs. (Crim. Docs. 2, 13, 23). 1 Based on his calculation of his good conduct
time, Mr. Anderson believes the BOP should release him from prison well before
Citations to “Crim. Doc.” reflect documents in Mr. Anderson’s criminal docket in this district,
United States of America v. Edwin Moore Anderson, 2:19-cr-00135-ACA-SGC.
his current release date of January 14, 2021. He asks for immediate release from
prison. (Doc. 1, pp. 6, 13, 15-17). 2
The magistrate judge assigned to this case reviewed Mr. Anderson’s petition
and recommended that the Court dismiss the petition without prejudice based on Mr.
Anderson’s failure to exhaust his administrative remedies. (Doc. 10, pp. 3-6, 14).
Because the magistrate judge recognized that Mr. Anderson would not be able to
exhaust his administrative remedies before his release date, the magistrate judge
evaluated the merits of Mr. Anderson’s two arguments for additional good time
credit and rejected Mr. Anderson’s arguments. (Doc. 10, p. 6 n.1). The magistrate
judge advised the parties of their right to file objections to the report and
recommendation. (Doc. 10, pp. 14-15). To date, the Court has not received
A district court “may accept, reject, or modify, in whole or in part, the findings
or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C). A
district judge must “make a de novo determination of those portions of the
[magistrate judge’s] report or specified proposed findings or recommendations to
which objection is made.” 28 U.S.C. § 636(b)(1); see also FED. R. CRIM. P. 59(b)(3)
This § 2241 proceeding is Mr. Anderson’s second attempt to have this district court order the
Bureau of Prisons to re-calculate his good conduct time. Mr. Anderson asked his sentencing judge
for relief. (Crim. Doc. 27). The sentencing judge denied Mr. Anderson’s request for relief on June
30, 2020, 14 days before Mr. Anderson filed his petition in this habeas proceeding. (Crim. Doc.
45; Doc. 1).
(“The district judge must consider de novo any objection to the magistrate judge’s
recommendation.”). Although § 636(b)(1) “does not require the [district] judge to
review an issue de novo if no objections are filed, it does not preclude further review
by the district judge, sua sponte or at the request of a party, under a de novo or any
other standard.” Thomas v. Arn, 474 U.S. 140, 154 (1985). That is because for
dispositive issues, like habeas petitions, “the ultimate adjudicatory determination is
reserved to the district judge.” United States v. Raddatz, 447 U.S. 667, 675 (1980).
The magistrate judge set forth the facts relevant to Mr. Anderson’s request for
relief. They are these:
On April 22, 2013, the Northern District of Florida sentenced Anderson
to a 90-month term of imprisonment for conspiracy to defraud the
government, wire fraud, and identity theft. United States v.
Anderson,4:12-cr-59-001(N.D. Fla. 2013). Doc. 5-1 at 10–12. He also
received a term of three years of supervised release upon conclusion of
his imprisonment. Doc. 5-1 at 14. On September 7, 2018, Anderson
was released from prison and began his term of supervised release.
Doc. 5-1 at 29. Although Anderson’s conviction and sentence
originated in the Northern District of Florida, that court transferred
Anderson’s supervision to the Northern District of Alabama on January
24, 2019. See United States v. Anderson, 2:19-cr-00135-ACA-SGC.
Because Anderson tested positive for illegal drugs in February and
March 2019, the Northern District of Alabama revoked his supervised
release in October 2019 and sentenced Anderson to a term of 18 months
followed by six months of supervised release. Doc. 5-1 at 26.
The BOP projects Anderson’s current release date to be January 14,
2021. Doc. 1 at 26; Doc. 5-1 at 5. Anderson asserts that the First Step
Act of 2018 entitles him to 53 days of credit through retroactive GCT
for the 90-month sentence he completed prior to the enactment of that
Act, and 54 days of un-prorated credit for the final six months of his
18-month sentence. Doc. 1 at 9. The government responds that
Anderson’s failure to exhaust his administrative remedies prior to filing
this § 2241 petition requires the dismissal of his claims and, in any
event, BOP properly calculated his release date. Doc. 5. Anderson, in
his reply, asserts that other similarly situated inmates have received
retroactive GCT, but the BOP improperly deemed his revocation to be
a new sentence—rather than a continuation of his original sentence—
because he received a new case number when the Northern District of
Florida transferred his supervision to the Northern District of Alabama.
Doc. 7 at 7.
(Doc. 10, p. 2).
Turning to the analysis in the report, as noted, the magistrate judge found that
Mr. Anderson did not properly exhaust his administrative remedies. (Doc. 10, pp.
3-6, p. 14). The Court adopts the magistrate judge’s finding concerning exhaustion.
On the merits, the magistrate judge found that Mr. Anderson is not entitled to
retroactive good conduct time pursuant to the First Step Act’s increase in the annual
allotment of good conduct time for the years that Mr. Anderson served in prison
under his 2013 sentence because “there is no legal basis for retroactively applying
GCT to an already completed sentence.” (Doc. 10, p. 10). The magistrate judge
also concluded that the BOP properly prorated good conduct time for the last six
months of Mr. Anderson’s 18-month sentence and that Mr. Anderson is not entitled
to the full annual allotment of 54 days of good conduct time for those final six
months. (Doc. 10, pp. 13-14).
I reach the same conclusion as the magistrate judge with respect to Mr.
Anderson’s argument concerning retroactive application of good conduct time under
the First Step Act but depart somewhat from the authority on which the magistrate
judge’s conclusion rests. Mr. Anderson contends that his revocation sentence of
imprisonment, ordered in 2019, is part of his 2013 sentence and that good conduct
time available from his original term of imprisonment, because of the increased
annual allotment of good conduct time under the First Step Act, should apply as
credit towards his 18-month revocation sentence. (Doc. 1, pp. 3, 6, 9, 13). Under
the First Step Act of 2018, federal prisoners may earn 54 days of good conduct time
annually, an increase of seven days over the prior available annual allotment of good
conduct time. 3 Congress made the seven day increase partially retroactive by
providing that the 54-day credit applies to “a prisoner who is serving a term of
imprisonment of more than 1 year.” 18 U.S.C. § 3624(b)(1). Thus, an additional
seven days of credit for each year of his initial 90-month term of imprisonment is
available to Mr. Anderson if, on revocation, he “is serving” part of the incarceration
component of his original sentence.
In evaluating Mr. Anderson’s argument, I depart from the authority on which
the magistrate judge relied because language in the cited opinions is inconsistent
“Section 102 of the First Step Act of 2018 amended the maximum allowable good conduct time
from 47 to 54 days per year.” (Doc. 10, p. 7) (citing 18 U.S.C. § 3624(b)(1)).
with Supreme Court precedent. (Doc. 10, pp. 7-9). In an opinion that is persuasive
authority for district courts in the circuit, the Eleventh Circuit Court of Appeals
recently stated: “Punishment imposed upon the revocation of supervised release is
a modification of the sentence imposed for the original offense; it is not punishment
for the conduct that violated the terms of supervised release.” United States v. Paul,
826 Fed. Appx. 809, 814 (11th Cir. 2020). The holding rests on the Supreme Court’s
decision in Johnson v. United States, 529 U.S. 694 (2000).
In Johnson, the Supreme Court rejected lower court decisions in which the
lower courts had held that a term of imprisonment imposed upon revocation of
supervised release for a new crime committed during a term of supervision, a
violation of a mandatory condition of supervised release, was punishment for the
violation of the condition of supervised release. Johnson, 529 U.S. at 700; see 28
U.S.C. § 3583(d) (“The court shall order, as an explicit condition of supervised
release, that the defendant not commit another Federal, State, or local crime during
the term of supervision . . . .”). The Supreme Court held that the revocation sentence
of imprisonment is “part of the penalty for the original offense.” Johnson, 529 U.S.
The Supreme Court explained that critical constitutional concepts would be
jeopardized if a term of imprisonment for a violation of a condition of supervised
release were anything other than a part of the original penalty that a district court
imposed for criminal conduct established by a guilty plea or by proof beyond a
reasonable doubt of a criminal violation. For example, a district court may take a
person’s liberty and impose a term of imprisonment for violation of a condition of
supervised release even if the violation does not involve criminal conduct. And a
district court may imprison an individual under supervision for new conduct that is
a violation of criminal law if the government establishes the criminal violation by a
preponderance of the evidence; the government does not have to meet the more
demanding reasonable doubt standard to establish grounds for imprisonment if the
government requests imprisonment because the individual violated a term of
supervision by committing a new crime. Johnson, 529 U.S. at 700; see 18 U.S.C. §
3583(e)(3) (stating that a district court may “revoke a term of supervised release,
and require the defendant to serve in prison all or part of the term of supervised
release authorized by statute for the offense that resulted in such term of supervised
release without credit for time previously served on postrelease supervision, if the
court, pursuant to the Federal Rules of Criminal Procedure applicable to revocation
of probation or supervised release, finds by a preponderance of the evidence that the
defendant violated a condition of supervised release . . . .”).
Moreover, in addition to the penalty that a court may assess for a violation of
the condition of supervised release, an individual under supervision who violates a
criminal law may be charged separately for the new violation and may be found
guilty of the new criminal violation either upon a guilty plea or proof to a jury of
guilt beyond a reasonable doubt. The individual may be sentenced to separate terms
of imprisonment, one for the violation of the condition of supervised release and
another for the new criminal conduct. In this scenario, if a term of imprisonment on
revocation were punishment for the new criminal conduct (as indicated in opinions
cited in the report and recommendation), the lower standard of proof, the absence of
a jury finding of guilt, and the potential for double jeopardy would create
constitutional issues under the Fifth and Sixth Amendments. Johnson, 529 U.S. at
More recently, in United States v. Haymond, Justice Gorsuch, writing for
himself and three other justices, examined the constitutional boundaries of a judge’s
ability to impose a term of imprisonment for a violation of a condition of supervised
release. Justice Gorsuch began with this fundamental proposition: “Only a jury,
acting on proof beyond a reasonable doubt, may take a person’s liberty.” 139 S.Ct.
2369, 2373 (2019). He continued: “A judge’s authority to issue a sentence derives
from, and is limited by, the jury’s factual findings of criminal conduct.” 139 S.Ct.
at 2376. 4 Tracing the history of supervision as a component of a criminal sentence,
Justice Gorsuch explained that, at common law, criminal penalties initially were
As corollary, a judge may take a person’s liberty upon a confession of guilt by guilty plea but
only to the extent permitted by the facts established as part of the guilty plea.
prescribed and that probation and parole, periods of supervised “conditional liberty”
substituted for part or all of a prison term and subject to revocation, were fashioned
by legislatures as “an ‘act of grace.’” 139 S.Ct. at 2377. In 1984, Congress
eliminated federal parole and substituted supervised release, a form of conditional
liberty that does not replace a portion of an individual’s initial term of imprisonment
but follows the term of imprisonment as a component of a defendant’s overall
sentence “to encourage rehabilitation after the completion of [a] prison term.” 139
S.Ct. at 2382 (emphasis in Haymond). 5
To be constitutionally sound, a prison term imposed upon revocation of a
period of conditional liberty may not “exceed the remaining balance of the term of
imprisonment already authorized by the jury’s verdict” (or the facts supporting a
guilty plea) because a period of imprisonment for a violation of a condition of
conditional liberty, here supervised release, is tethered to the facts that produced the
entire sentence of imprisonment and supervision, not the conduct that violated the
condition of supervision. 139 S.Ct. at 2377. Justice Gorsuch reiterated the lesson
Today, we merely acknowledge that an accused’s final sentence
includes any supervised release sentence he may receive. Nor in saying
that do we say anything new: This Court has already recognized that
supervised release punishments arise from and are “treat[ed] ... as part
of the penalty for the initial offense.” Johnson v. United States, 529
As Congress has stated, “imprisonment is not an appropriate means of promoting correction and
rehabilitation.” 28 U.S.C. § 3582(a).
U.S. 694, 700, 120 S.Ct. 1795, 146 L.Ed.2d 727 (2000). The defendant
receives a term of supervised release thanks to his initial offense, and
whether that release is later revoked or sustained, it constitutes a part of
the final sentence for his crime.
Haymond, 139 S.Ct. at 2379-80. In his concurring opinion in Haymond, Justice
Breyer put it this way:
The consequences that flow from violation of the conditions of
supervised release are first and foremost considered sanctions for the
defendant’s “breach of trust”—his “failure to follow the court-imposed
conditions that followed his initial conviction—not “for the particular
conduct triggering the revocation as if that conduct were being
sentenced as new federal criminal conduct.” United States Sentencing
Commission, Guidelines Manual ch. 7, pt. A, intro. 3(b) (Nov. 2018);
see post, at 2392 – 2393. Consistent with that view, the consequences
for violation of conditions of supervised release under § 3583(e), which
governs most revocations, are limited by the severity of the original
crime of conviction, not the conduct that results in revocation.
139 S.Ct. at 2386 (Breyer, J., concurring).
Reading Johnson and the principal and concurring opinions in Haymond
together, this much is clear: a prison term imposed for violation of a condition of
supervised release is cabined by the facts that undergird an individual’s criminal
conviction and the resulting sentence, not the facts that support the finding of a
violation of a condition of supervised release. In that sense, a term of imprisonment
for revocation of supervised release is related to the original term of incarceration,
and a prison sentence for revocation, when combined with the initial term of
imprisonment, may not exceed the statutory maximum for the conduct that produced
the criminal sentence. 6 But that does not mean that an individual is still serving his
original term of imprisonment within the meaning of the First Step Act when he is
imprisoned for a violation of a condition of supervision. To the contrary, Justice
Gorsuch stated that supervision begins -- and thus a violation of a condition of
supervision necessarily occurs – “after the completion of [a] prison term.” 139 S.Ct.
at 2382 (emphasis in Haymond).
But all of this is academic because even if a term of imprisonment imposed
for a violation of a condition of supervised release were an extension of an initial
term of imprisonment, such that retroactive good conduct time might be statutorily
available to an individual under the First Step Act, availability is not entitlement.
Awards of good conduct time are within the BOP’s discretion. By regulation, the
BOP has exercised its discretion to refuse good conduct time that could be credited
to a defendant after he is released from his initial term of imprisonment. Under 28
C.F.R. § 2.35(b), “[o]nce an offender is conditionally released from imprisonment,
either by parole or mandatory release, the good time earned during that period of
The language that the Eleventh Circuit used in Paul, characterizing the penalty for a violation of
a condition of supervised release as “a modification of the sentence imposed for the original
offense,” is helpful to an understanding of the relationship between the original crime and the
violation of a condition of supervision. In essence, a sentencing judge, in imposing a term of
imprisonment for a violation of a condition of supervised release, is recognizing that the initial
term of probation or imprisonment was not sufficient to accomplish the 18 U.S.C. § 3553(a)
sentencing factors of respect for the law, deterrence or future criminal conduct, protection of the
public and/or correctional treatment, so the court imposes, pursuant to § 3583, an additional term
of imprisonment for the original crime in light of the information provided by the violation of the
conditions of supervised release.
imprisonment is of no further effect either to shorten the period of supervision or to
shorten the period of imprisonment which the offender may be required to serve for
violation of parole or mandatory release.” 28 C.F.R. § 2.35(b). In other words, when
an offender is released, good conduct time he has accumulated or may accumulate
in the future through retroactive legislative changes expires.
Anderson’s argument that he is entitled to receive additional good conduct time for
his initial 90-month term of imprisonment fails because the credits that he claims
expired administratively when the BOP released him from custody to begin his term
That leaves Mr. Anderson’s argument that he should receive a full 54 days of
good conduct time credit for the last six months of his 18-month sentence. The Court
agrees with the magistrate judge’s finding that the BOP properly pro-rated Mr.
Anderson’s available annual good conduct time for the final six months of his
sentence. (Doc. 10, pp. 11-14). Therefore, the Court will not adjust the 27 days of
credit that the BOP calculated for the last six months of Mr. Anderson’s 18-month
Having reviewed and considered the materials in the habeas record and in the
underlying criminal record, the Court finds that Mr. Anderson has not exhausted his
administrative remedies, and, even if he had, he is not entitled to additional good
conduct time. Therefore, the Court denies Mr. Anderson’s request for an order
directing the BOP to recalculate his good conduct time. By separate order, the Court
will dismiss this habeas action without prejudice.
DONE and ORDERED this January 6, 2021.
MADELINE HUGHES HAIKALA
UNITED STATES DISTRICT JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?