Daniel v. Hudson
MEMORANDUM AND ORDER AND ORDER TO SHOW CAUSE ENTERED: The petition for a writ of habeas corpus is hereby granted in part and remains pending in part. The petition is denied with respect to the claim concerning the application of earned First Step Ac t credit to petitioner's sentence. The petition remains pending with respect to the claim that petitioner has been deprived of earned good time credit. Petitioner is required to show cause in writing on or before March 7, 2024, why the remaining claim asserted in the petition should not be denied. Signed by District Judge John W. Lungstrum on 02/05/24. Mailed to pro se party Thaddeus Daniel by regular mail. (smnd)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
D. HUDSON, Warden, USP-Leavenworth,
Case No. 23-3189-JWL
MEMORANDUM AND ORDER
ORDER TO SHOW CAUSE
This matter comes before the Court on a pro se petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2241. For the reasons set forth below, the petition is denied in
part and remains pending in part. The petition is denied with respect to the claim
concerning the application of earned First Step Act credit to petitioner’s sentence. The
petition remains pending with respect to the claim that petitioner has been deprived of
earned good time credit, although petitioner is ordered to show cause why that claim should
not be denied, as set forth below.
Petitioner was convicted in the Eastern District of Tennessee of the offense being a
felon in possession of a firearm, and in 2013 he was sentenced to a term of imprisonment
of 211 months. He is presently imprisoned at the federal penitentiary in Leavenworth,
within this judicial district, and his projected release date is December 18, 2027.
On August 7, 2023, petitioner filed a pro se petition for habeas relief under Section
2241. The Clerk of Court gave notice to petitioner that his petition was deficient because
he did not use a court-approved form as required, but petitioner did not respond with respect
to that issue. The Court therefore ordered petitioner to show cause why his petition should
not be dismissed on that basis; and when petitioner did not respond to that order, the Court
dismissed the petition.
Petitioner subsequently moved to reopen the case, based on his representation that
he had not received the show-cause order, and the Court granted the motion, reopened the
case, and allowed for the filing of petitioner’s amended petition (on the approved form).
In his amended petition – which refers back to and incorporates exhibits from his original
petition – petitioner asserts separate claims relating to earned good time credit and earned
First Step Act (FSA) credit.1 Respondent filed an answer, and petitioner has filed two
essentially-identical pleadings in reply.
The amended petition states that petitioner is challenging the deprivation of both
good time credit and FSA credit; its asserts two grounds for relief – one relating to good
time credit and one relating to FSA credit; it incorporates exhibits attached to his original
petition that relate to both types of credit; and it seeks as relief both the restoration of earned
good time credit and the application of earned FSA credit. Each of petitioner’s reply briefs
separately addresses in two enumerated sections the good time credit and the FSA credit.
Petitioner claims that the Bureau of Prisons (BOP) has refused to apply to his release
date certain days of credit that he has earned under the FSA. Respondent concedes that
petitioner has earned 365 days of FSA credit that could be applied to his release date, as
well as 225 days of FSA credit that could be applied to time in a residential reentry center.
Respondent argues, however, that petitioner is not entitled to have that credit applied to his
release date because he has not been assessed to have a minimum or low risk of recidivism
as required by the FSA.2
The FSA provides that a prisoner may earn a certain amount of time credit for
completing evidence-based recidivism reduction (EBRR) programming or productive
activities. See 18 U.S.C. § 3632(d)(4)(A). The statute further provides that earned credit
“shall be applied toward time in prerelease custody or supervised release.” See id. §
3632(d)(4)(C). That latter provision sets forth the manner in which the credit is to be
applied, namely to time in prerelease custody or supervised release; but the statute must be
read in conjunction with Section 3624, which explicitly limits such application of earned
credit to prisoners who meet certain requirements. See id. § 3624(g).3 For a prisoner (such
Respondent also argues that the credit may not be applied at this time because
petitioner has not earned credit in an amount equal to the time remaining on his term. See
18 U.S.C. § 3624(g)(1)(A). Satisfaction of that requirement, however, could depend on
whether petitioner succeeds on his claim seeking the restoration of certain good time credit.
Thus, the Court has not relied on this argument by respondent in denying this claim.
Petitioner argues that eligibility depends only on the conviction for which the
prisoner was sentenced. The FSA provides that a prisoner shall earn this credit unless
“ineligible” under subparagraph (D), which in turn lists various offenses that make a
as petitioner) who seeks to apply credit to time in prerelease custody, one of the
requirements is that either (1) the prisoner has been determined under the BOP’s
assessment system “to be a minimum or low risk to recidivate pursuant to the last 2
assessments of the prisoner;” or (2) the warden has approved a petition for the prisoner’s
transfer to prerelease custody. See id. § 3632(g)(1)(D)(i). Petitioner has not argued that
he applied to the warden for such approval; nor does petitioner dispute that he has been
assessed as a medium risk to recidivate in his most recent assessments (performed under
the BOP’s PATTERN assessment tool).
Accordingly, under the governing statute,
petitioner is not eligible to have his FSA credit applied to his time in prerelease custody.
Petitioner has not explained why this requirement of low or minimum risk
assessments must not be satisfied to have his credit applied to his release date.4 Nor has
petitioner challenged the BOP’s PATTERN assessments for him of a medium risk of
recidivism. Petitioner does wonder in his reply briefs why Congress would allow high- or
medium-risk prisoners to earn credit that cannot be applied, but as the BOP noted in the
prisoner “ineligible” to receive the credit. See 18 U.S.C. § 3632(d)(4)(A), (D). Petitioner’s
offense is not among those listed, and thus, as respondent has conceded, petitioner is
eligible to earn this credit under the FSA. He does not meet the requirements for having
that credit applied to his sentence, however.
Petitioner has not cited any authority – and the Court is not aware of any such
authority – suggesting that all earned credit must be applied regardless of whether the
requirements of Section 3632(g) are satisfied. Moreover, even if the statute could be
considered ambiguous (despite its directly addressing the issue), this interpretation by the
BOP in giving effect to Section 3632(g) is reasonable and thus would be entitled to
Chevron deference. See Lopez v. Davis, 531 U.S. 230, 242 (2001) (deferring to the BOP’s
reasonable interpretation of a statute).
grievance response attached to the petition, petitioner could still have that credit applied in
the future if he is able to earn a lower risk assessment.
Finally, petitioner argues that he has a liberty interest in the FSA credit he has
There is no constitutional right, however, to a reduced sentence or to be
conditionally released before the expiration of a valid sentence. See Fristoe v. Thompson,
144 F.3d 627, 630 (10th Cir. 1998). A protected liberty interest may arise from a federal
statute, see id., but as discussed, petitioner has not shown a violation of the FSA in this
case. Accordingly, the Court denies this claim of the petition relating to petitioner’s FSA
Good Time Credit
As petitioner notes in his reply briefs, respondent has not addressed petitioner’s
claim relating to the alleged deprivation of earned good time credit. Nevertheless, the
Court cannot grant petitioner relief on that claim because he has not shown an improper
deprivation or calculation of his earned good time credit. Petitioner merely alleges in a
conclusory fashion that he has been deprived of 921 days of good time credit that he has
earned (with that number increasing to 1,035 days by the time of petitioner’s reply briefs),
in which credit he asserts a liberty interest, but petitioner has not provided any details or
explained how any such deprivation occurred. Petitioner’s figure of 921 days does not
appear in the exhibits to the original petition, nor do those exhibits show that petitioner was
improperly denied any good time credit. Nor is it apparent from the petition or amended
petition that petitioner has exhausted administrative remedies with respect to his good time
credit by pursing grievances with the BOP.
Accordingly, petitioner is ordered to show cause why this claim should not be
denied for failure to show a violation of federal law. Petitioner should respond to this order
by filing a written response, on or before March 7, 2024, in which he sets out the specific
basis for his claim and explains why he is entitled to relief. Upon review of that response,
the Court will decide whether a supplemental answer from respondent and a supplemental
traverse from petitioner are required.
IT IS THEREFFORE ORDERED BY THE COURT THAT the petition for a writ
of habeas corpus is hereby granted in part and remains pending in part. The petition is
denied with respect to the claim concerning the application of earned First Step Act credit
to petitioner’s sentence. The petition remains pending with respect to the claim that
petitioner has been deprived of earned good time credit.
IT IS FURTHER ORDERED BY THE COURT THAT petitioner is required to
show cause in writing on or before March 7, 2024, why the remaining claim asserted in
the petition should not be denied.
IT IS SO ORDERED.
Dated this 5th day of February, 2024, in Kansas City, Kansas.
/s/ John W. Lungstrum
Hon. John W. Lungstrum
United States District Judge
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