Samoiloff v. Stover
Filing
14
ORDER: For the reasons stated in the attached memorandum, the Petition for Relief (ECF No. 1 ) under 28 U.S.C. § 2241 is DENIED. The Clerk is instructed to close this case and mail a copy of the decision and this Order to Petitioner. Any appeal from this Order would not be taken in good faith.It is so ordered. Signed by Judge Vernon D. Oliver on 5/10/2024.(Lapsia, T)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
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ALEXA SAMOILOFF,
:
:
Petitioner,
:
RULING ON PETITION
:
-againstFOR RELIEF UNDER 28
:
U.S.C. § 2241
:
STOVER, WARDEN OF FCI DANBURY,
Respondent.
---------------------------------------------------------------
:
:
3:23-cv-1698 (VDO)
x
VERNON D. OLIVER, United States District Judge:
Petitioner Alexa Samoiloff filed this petition for habeas relief under 28 U.S.C. § 2241
while incarcerated at Federal Correctional Institution at Danbury, Connecticut (“Danbury
FCI”). (Pet., ECF No. 1.) In her petition, she claims that (1) the Bureau of Prisons (“BOP”)
miscalculated her First Step Act (“FSA”) credits that she was eligible to earn at the time of her
sentencing and that (2) she was improperly disqualified from earning FSA credits for two
weeks between April 19, 2022 and May 3, 2022. (Id. ¶ 13.) Petitioner requests the Court to
order the BOP to recalculate her release date to account for her earned FSA time credits. (Id.
¶ 15.) In his response to the Court’s order to show cause dated January 17, 2024, Respondent
argues that Petitioner is statutorily ineligible to earn FSA credits. (Resp’t Response, ECF No.
10.) Petitioner and Respondent have each filed reply briefs. (Pet’r Reply, ECF No. 11; Resp’t
Reply, ECF No. 12; Pet’r Sur-Response, ECF No. 13.) This matter is therefore now fully
briefed.
Upon review, the Court concludes that the Petition is denied.
I.
BACKGROUND
Respondent has submitted the declaration of BOP Case Management Coordinator
Mandy Breece, who works at Danbury FCI. (Breece Decl., ECF No. 10-1.) She avers that after
Petitioner filed the instant Petition, the BOP discovered that an administrative error had
resulted in Petitioner being deemed eligible to earn FSA credits. (Id. ¶ 5.) She explains that
Petitioner should have been considered statutorily ineligible to earn FSA credits because she
is serving a sentence for an offense listed in 18 U.S.C. § 362(d)(4)(D).
Petitioner was sentenced in the United States District Court for the District of Rhode
Island to a 120-month term of imprisonment with a five-year term of supervision for
Conspiracy to Distribute and Possess with Intent to Distribute 50 Grams or More of
Methamphetamine, in violation of 21 U.S.C. § 846; Possession With Intent to Distribute 5
Grams or More of Methamphetamine, in violation of 18 U.S.C. § 2 and 21 U.S.C. §§ 841(a)(1),
(b)(1)(B)(viii); and Aiding and Abetting Distribution of 5 Grams or More of
Methamphetamine, in violation of 18 U.S.C. § 2 and 21 U.S.C. §§ 841(a)(1), (b)(1)(B)(viii).
See Breece Decl. ¶ 6, Ex. 1 (Judgment, United States v. Samoiloff, No. 1:20-cr-58 (D.R.I.)).
In its statement of reasons, the sentencing court “adopt[ed] the presentence
investigation report” that indicated application of a “three-level enhancement because the
defendant was a manager or supervisor (but not an organizer or leader) and the criminal activity
involved five or more participants or was otherwise extensive.” (Breece Decl. ¶ 8 (quoting
Presentence Investigation Report).) 1
1
Respondent states that neither the Presentence Investigation Report (“PSR”) or the Statement of
Reasons (“SOR”) is available on the public docket and permission to disclose these records rests
solely with the sentencing court. See 5 U.S.C. §§ 551-52 (explaining that an agency, such as BOP,
2
At present, the BOP has calculated Petitioner’s sentence with her good conduct time
per 18 U.S.C. § 3624(b) to determine her current projected release date as August 31, 2028.
(Id. ¶ 7.)
II.
LEGAL STANDARD
A federal prisoner may petition for habeas relief if she is “in custody in violation of the
Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241(c)(3). “A writ of habeas
corpus under § 2241 is available to a federal prisoner who does not challenge the legality of
his sentence, but challenges instead its execution subsequent to his conviction.” Carmona v.
U.S. Bureau of Prisons, 243 F.3d 629, 632 (2d Cir. 2001). Thus, § 2241 petitions are
appropriately used to challenge conditions of confinement or sentence calculations. See Levine
v. Apker, 455 F.3d 71, 78 (2d Cir. 2006); Dailey v. Pullen, No. 3:22-cv-1121 (SRU), 2023 WL
3456696, at *2 (D. Conn. May 15, 2023) (considering a challenge to First Step Act time credit
calculation on a § 2241 petition).
III.
DISCUSSION
Petitioner maintains that she is eligible to earn FSA credits and that she has
continuously participated in recidivism reduction programs. (Pet’r Reply.)
must make certain information available to the public, but that the term “agency” does not include
the courts of the United States). See Resp’t Response at 3 n. 2, ECF No. 10. This Court’s review
of the docket for Petitioner’s criminal case on the Electronic Document Filing System for the
District of Rhode Island confirmed that this information is not presently accessible to this Court.
Therefore, the Court relies upon the Breece declaration attesting to information in the records.
Notably, Petitioner does not dispute that the information stated in the Breece declaration is
reflected in the PSR and SOR, although she contests the characterization of her having a role of a
manager. See ECF Nos. 11, 13.
3
On December 21, 2018, Congress enacted the FSA, which was intended to encourage
federal inmates to participate in evidence-based recidivism reduction programs (“EBRRs”)
and other productive activities (“PAs”) by providing time credits to an inmate who successfully
participates in such programs. See 18 U.S.C. § 3632(d)(4)(C), 3624(g)(1)(A); 28 C.F.R. §
523.40(b); Daily, 2023 WL 3456696, *2.
The FSA required BOP to develop a system to assess a prisoner’s criminogenic needs
and risk of recidivism and assign prisoners to evidence-based recidivism reduction
programming and productive activities targeted toward their specific criminogenic needs. See
generally 18 U.S.C. § 3632 et seq. “All sentenced inmates, regardless of eligibility status, will
receive both a risk and need assessment … after the inmate’s arrival to their designated facility
for service of their sentence and during the initial admission and orientation phase.” See BOP
Program Statement 5410.01, CN-2, First Step Act of 2018 – Time Credits: Procedures for
Implementation
of
18
U.S.C.
§
3632(d)(4),
available
at
https://www.bop.gov/policy/progstat/5410.01_cn2.pdf (last accessed May 7, 2024). 2
An inmate’s initial risk and needs assessment is ordinarily completed within twentyeight days of his/her arrival at the designated facility. See BOP Program Statement 5410.01,
CN-2, § 5. 3 Inmates are reassessed at each regularly scheduled Program Review throughout
their incarceration. See id. Program Reviews occur approximately every 180 days unless an
inmate is within one year of release, in which case they occur every 90 days. See 28 C.F.R. §
524.11(a). An inmate classified as having a minimum or low risk of recidivism earns either
2
See Giraldo v. Kessler, 694 F.3d 161, 164 (2d Cir. 2012) (court may “take judicial notice of
relevant matters of public record”).
3
Available at https://www.bop.gov/policy/progstat/5410.01_cn2.pdf.
4
ten or fifteen days of FSA time credits for every thirty days of successful participation in
EBRRs or PAs. 18 U.S.C. § 3632(d)(4)(A).
With enough time credits, an inmate may be transferred sooner to prerelease custody,
either in a residential reentry center or on home confinement, or supervised release. See 18
U.S.C. § 3624(g)(2). Inmates classified as minimum or low risk of recidivism are eligible to
earn either ten or fifteen days of credit for every thirty days of successful participation in
EBRRs or PAs. See 18 U.S.C. § 3632(d)(4)(A). If the inmate’s sentence includes a period of
supervised release, “the Director of the Bureau of Prisons may transfer the prisoner to begin
any such term of supervised release at an earlier date, not to exceed 12 months.” 18 U.S.C. §
3624(g)(3).
The FSA includes a list of 68 statutes, the violation of which renders an inmate
ineligible for FSA time credits. See 18 U.S.C. § 3632(d)(4)(D). Relevant to this action, 18
U.S.C. § 3632(d)(4)(D) provides, in relevant part:
Ineligible prisoners. – A prisoner is ineligible to receive time credits under this
paragraph if the prisoner is serving a sentence for a conviction under any of the
following provisions of law:
****
(lxxvii) Subparagraph (A)(viii) or (B)(viii) of section 401(b)(1) of the
Controlled Substances Act (21 U.S.C. 841(b)(1)) or paragraph (1)(H) or (2)(H)
of section 1010(b) the Controlled Substances Import and Export Act (21 U.S.C.
960(b)), relating to manufacturing, distributing, dispensing, or possessing with
intent to manufacture, distribute, or dispense, or knowingly importing or
exporting, a mixture of substance containing a detectable amount of
methamphetamine, its salts, isomers, or salts of its isomers, if the sentencing
court finds that the offender was an organizer, leader, manager, or supervisor of
others in the offense, as determined under the guidelines promulgated by the
United States Sentencing Commission.
5
18 U.S.C. § 3632(d)(4)(D)(lxvii). Here, the judgment in Petitioner’s underlying criminal case
clearly shows that she was sentenced for violation of 21 U.S.C. § 841(b)(1)(B)(viii).
In arguing for her eligibility, Petitioner relies on two out-of-circuit cases, Noe v. True,
No. 21-1373, 2022 WL 5080196 (10th Cir. Oct. 5, 2022) and Turner v. Keyes, 3:22-CV-321
(WMC) (W.D. Wis.). But neither of these cases supports Petitioner’s claim for FSA eligibility.
In Noe, the plaintiff argued that his exclusion from FSA incentives violated his
constitutional right to equal protection. 2022 WL 5080196, at *9. The Tenth Circuit rejected
the defendants’ argument that the plaintiff lacked standing to bring his equal protection claim
because his conviction for conspiring to distribute methamphetamine rendered him statutorily
ineligible to earn FSA credits. Id. In so holding, the Tenth Circuit noted that Plaintiff’s
judgment showed that he was convicted of conspiracy but not a substantive offense under §
841(b)(1)(A). Id. at *10. The Court went on to explain that the statutory list of disqualifying
convictions includes 21 U.S.C. § 841(b)(1)(A)(viii) “relating to . . . distributing . . .
methamphetamine . . . if the sentencing court finds that the offender was a . . . leader . . . in the
offense, as determined under the guidelines promulgated by the United States Sentencing
Commission,” but it “does not include 21 U.S.C. § 846, conspiring to commit a controlledsubstance offense.” Id. at *10 (citing 18 U.S.C. § 3632(d)(4)(D)(lxvii)). Thus, even an
“inclusion of statutory references to both the conspiracy statute and the sections describing the
object of the conspiracy does not transform the judgment into one that describes a conviction
of the substantive crime.” Id. (noting plaintiff’s judgment “cannot be properly read . . . to
suggest that he stands convicted of the crime that was the object of the conspiracy”) (internal
citations and quotation marks omitted).
6
Likewise, in Turner, the Western District of Wisconsin determined that the BOP had
erred by disqualifying the petitioner from earning FSA credit on the basis of his conspiracy
conviction in violation of 21 U.S.C. § 846 and that a “conviction under § 846 did not equate
to him ‘serving a sentence for a conviction under § 841(b)(1)(A), pursuant to §
3632(d)(4)(D)(lxvii).” Opinion and Order at 7, ECF No. 24.
Thus, Petitioner cites to case law that only serves to underscore her ineligibility to earn
FSA credits in light of her separate conviction under 21 U.S.C. § 841(b)(1)(B)(viii) and her
role as a manager or supervisor as identified in the PSR adopted by the sentencing court.
(Breece Decl. ¶¶ 6, 8.) Petitioner maintains that the PSR indicates she was a manager or
supervisor in only the conspiracy. The PSR states that she was “a manager or supervisor . . .
and the criminal activity involved five or more participants or was otherwise extensive” and
refers to her activity to further the conspiracy, but it does not confine her role as a manager of
only the conspiracy. See id. ¶ 8.
Accordingly, the Court concludes that Petitioner is statutorily disqualified from FSA
eligibility pursuant to 18 U.S.C. § 3632(d)(4)(D)(lxvii). Thus, the Court must deny the petition
for habeas relief under section 2241.
IV.
CONCLUSION
For the foregoing reasons, the Petition for Relief (ECF No. 1) under 28 U.S.C. § 2241
is DENIED. The Clerk is instructed to close this case. Any appeal from this order would not
be taken in good faith.
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SO ORDERED.
Hartford, Connecticut
May 10, 2024
/s/Vernon D. Oliver
VERNON D. OLIVER
United States District Judge
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