Harrison v. McGee et al

Filing 8

ORDER. The Petition (ECF No. 1 ) is denied. The Clerk is directed to close the case. Signed by Judge Robert N. Scola, Jr on 11/21/2022. See attached document for full details. (daa)

Case 2:22-cv-14312-RNS Document 8 Entered on FLSD Docket 11/21/2022 Page 1 of 4

United States District Court
for the
Southern District of Florida
Lee Michael Harrison, Petitioner

)
)
)
Civil Action No. 22-14312-Scola
)
)
)

v.
Federal Bureau of Prisons,
Respondent.

Order
Before the Court is Petitioner Lee Michael Harrison’s Petition for Writ of
Habeas Corpus Under 28 U.S.C. § 2241 (ECF No. 1) (“Petition”). The Court has
considered Harrison’s Petition, the government’s response (ECF No. 7)
(“Response”), the entire record, and is otherwise fully advised. For the reasons
explained below, the Petition is denied.
Background
Harrison argues that he is owed First Step Act (“FSA”) earned time
credits that should be applied to shorten his term of supervised release. (See
generally Petition). Specifically, he contends that he lost 469 days of earned
time credits without due process. (See id.). Respondent disagrees, but first
asserts that Harrison is suing the wrong party—U.S. Probation rather than the
Bureau of Prisons—and that he also failed to exhaust administrative remedies.
See Response at 1.
Exhaustion
Prior to initiating a proceeding under 28 U.S.C. § 2241, a petitioner must
exhaust administrative remedies. See Santiago-Lugo v. Warden, 785 F.3d 467,
475 (11th Cir. 2015). The exhaustion requirement is not jurisdictional, so a
district court “may skip over the exhaustion issue if it is easier to deny . . . the
petition on the merits without reaching the exhaustion question.” Blevins v. FCI
Hazelton Warden, 819 F. App’x 853, 859 (11th Cir. 2020).
The parties dispute the steps that must be taken to exhaust
administrative remedies. It is easier to resolve the case on the merits. The
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Court will therefore “skip over the exhaustion issue” and proceed to the merits.
Blevins, 819 F. App’x at 859.
Grounds One and Two
In Ground One, Harrison argues that his due process rights under 18
U.S.C. § 3632(e)(2) were denied by the revocation of at least 469 days of First
Step Act Earned Time Credits. (See Petition at 5). In Ground Two, he asserts
that “BOP violated the mandatory language of 18 U.S.C. § 3632(d)(4)(C) of the
First Step Act.” (Id. at 8). Both grounds can be addressed together. The
prisoner release statute, 18 U.S.C. § 3624 in pertinent part, states:
(3) Supervised release.--If the sentencing court included as a part of the
prisoner's sentence a requirement that the prisoner be placed on a term
of supervised release after imprisonment pursuant to section 3583, 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, based on the application of time credits
under section 3632.
Id. (emphasis added). Based on the plain text of the statute, FSA credits cannot
be used to shorten a term of supervised release. Rather, the credits can only be
used to allow early transfer to supervised release.
In his Petition, Harrison relies primarily on Dyer v. Fulgam, a district
court opinion from the Eastern District of Tennessee where the district judge
applied the unused First Step Act time credits toward petitioner's term of
supervised release. 2022 WL 1598249 (2022). The Court will not follow Dyer v.
Fulgam. 1 That opinion is non-binding on this Court and the decision is under
appeal. See Dyer v. Fulgam, Case No. 21-299-CV-Collier (ECF Nos. 18, 19).
Moving to binding caselaw, the Supreme Court has held that the length
of a term of supervised release cannot be reduced “by reason of excess time

Other district courts have taken the same approach. See Pillow v. Bureau of Prisons, 2022 WL
13892877, at *7 (E.D. Ark. Oct. 21, 2022) (“The Court will not follow Dyer v. Fulgam and will
not order his additional credits be applied to his two years of supervised release. Once
[Petitioner] begins serving his supervised release, he is no longer in BOP custody, and the
Court can no longer grant relief.”); Zimmer v. Marske, 2022 WL 4016623 (W.D. Wis. Sept. 2,
2022) (finding that court cannot use withheld FSA credits to reduce term of supervised release
retroactively).
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Case 2:22-cv-14312-RNS Document 8 Entered on FLSD Docket 11/21/2022 Page 3 of 4

served in prison.” United States v. Johnson, 529 U.S. 53, 60 (2000). This is
because “[s]upervised release fulfills rehabilitative ends distinct from those
served by incarceration.” Id. at 59; see also Goldblatt v. Ortiz, 2022 WL
1639007, at *2 (D.N.J. May 24, 2022) (applying Johnson to the § 2241 context
and finding that “the supervised release statute, 18 U.S.C. § 3624, does not
permit a court to credit a supervised release term with a period of excess prison
time.”). As in Johnson, the prisoner release statute in the present case, “by its
own necessary operation, does not reduce the length of a supervised release
term by reason of excess time served in prison.” Johnson, 529 U.S. at 60.
While this Court is unable to order relief, the sentencing court may, as it
sees fit, modify an individual's conditions of supervised release under 18 U.S.C.
§ 3583(e)(2). Furthermore, the court may terminate an individual's supervised
release obligations “at any time after the expiration of one year ... if it is
satisfied that such action is warranted by the conduct of the defendant
released and the interest of justice.” Id. § 3583(e)(1); see also Shorter v. Warden,
803 F. App'x 332, 334–35 (11th Cir. 2020); citing Pope v. Perdue, 889 F.3d 410,
414–15 (7th Cir. 2018) (The fact that a petitioner “spent too much time in
prison ... would carry ‘great weight’ in a § 3583(e) motion to reduce [the
petitioner’s] term,” even though it would not “automatically entitle him to
less supervised release.”).
Conclusion
Accordingly, it is ordered and adjudged that the Petition (ECF No. 1) is
denied. The Clerk is directed to close the case.
Done and ordered, in chambers, in Miami, Florida, on November 21,
2022.
________________________________
Robert N. Scola, Jr.
United States District Judge

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Copies, via U.S. Mail, to
Lee Michael Harrison
72144−066
Inmate Mail/Parcels
3816 Fetterbush Ct
Port Saint Lucie, FL 34952
PRO SE

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