Darling v. Boncher

Filing 22

Magistrate Judge Judith G. Dein: ORDER entered. MEMORANDUM OF DECISION AND ORDER on 2 Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241. After careful consideration of the parties' pleadings, this Court concludes that Darling has failed to establish any errors in the calculation of his sentence. Therefore, his Petition for Habeas Relief is DENIED. (Thomson, Katherine)

Case 1:22-cv-11664-JGD Document 22 Filed 01/19/23 Page 1 of 8

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
JOSEPH DARLING,
Petitioner,
v.
AMY BONCHER, Warden,
Respondent.

)
)
)
)
)
)
)
)
)

CIVIL ACTION
NO. 22-11664-JGD

MEMORANDUM OF DECISION AND ORDER ON
PETITIONER’S HABEAS PETITION PURSUANT TO 28 U.S.C. § 2241
January 19, 2023
DEIN, U.S.M.J.
I. INTRODUCTION
Following his guilty plea to a charge of conspiracy to distribute oxycodone in violation of
21 U.S.C. §§ 846, 841(a)(1) and 841(b)(1)(C), Petitioner Joseph Darling (“Darling”) was
sentenced by the U.S. District Court for the District of Vermont on October 1, 2015 to a term of
120 months imprisonment, 10 years of supervised release and a consecutive sentence of 11
months for a supervised release violation, for an aggregate sentence of a 131-month term of
imprisonment with a 10-year term of supervision. 1 (Resp. Ex. A). According to the Bureau of
Prisons’ (“BOP”) calculations, Darling’s release date is projected to be May 17, 2023, assuming
maximum credits under the First Step Act (“FSA”). On September 28, 2022, Darling brought a

Both parties have attached the relevant sentencing calculations to their pleadings, although the
Respondent’s attachments are more comprehensive. The facts are not in dispute and the court will cite
to the exhibits attached to “Respondent’s Opposition to Petition for a Writ of Habeas Corpus” (Docket
No. 11) (“Resp. Ex. ___”) and to the exhibits attached to the “Supplemental Briefing by Respondent”
(Docket No. 21) (“Resp. Supp. Ex. ___”).

1

Case 1:22-cv-11664-JGD Document 22 Filed 01/19/23 Page 2 of 8

petition for a writ of habeas relief pursuant to 28 U.S.C. § 2241 (Docket No. 2), alleging that he
is entitled to an additional 211 days of good-time credits, which would set his release date as
October 21, 2022.
Respondent opposed the petition on the grounds that Darling had failed to exhaust his
administrative remedies and because there were no errors in the calculation of his sentence.
However, after reviewing the pleadings, including Darling’s supplemental briefing of December
12, 2022 (Docket No. 17), the Court determined that further briefing would be helpful and
ordered the Respondent to address the issues raised by Darling. (Docket No. 18). The
Respondent filed its “Supplemental Briefing” on January 10, 2023, providing more details as to
how it calculated Darling’s sentence. (Docket No. 21) (“Resp. Supp. Mem.”). The Respondent
confirmed that Darling is scheduled to be transferred to a Residential Reentry Center on
January 18, 2023, and that his projected release date is May 17, 2023.
After careful consideration of the parties’ pleadings, this Court concludes that Darling
has failed to establish any errors in the calculation of his sentence. Therefore, his Petition for
Habeas Relief is DENIED.
II. EXHAUSTION OF ADMINISTRATIVE REMEDIES
Prisoners challenging their conditions of confinement are required to exhaust their
administrative remedies before they may petition for habeas corpus relief under 28 U.S.C. §
2241. Rogers v. United States, 180 F.3d 349, 358 (1st Cir. 1999) (“Once administrative remedies
are exhausted, see 28 C.F.R. §§ 542.10-542.16, prisoners may then seek judicial review of any
jail-time credit determination . . . by filing a habeas petition under 28 U.S.C. § 2241” (internal
citation omitted)); see Levine v. U.S. Dep’t of Federal Bureau of Prisons, Civil Action No. 20-cv[2]

Case 1:22-cv-11664-JGD Document 22 Filed 01/19/23 Page 3 of 8

11833-ADB, 2021 WL 681689, at * 3 (D. Mass. Feb. 22, 2021) (§ 2241 habeas petition seeking
sentence credit subject to dismissal if prisoner fails to exhaust his administrative remedies with
the BOP (and cases cited)). Proper exhaustion of administrative remedies “’means using all
steps that the agency holds out, and doing so properly (so that the agency addresses the issues
on the merits).’” Woodford v. Ngo, 548 U.S. 81, 90, 126 S. Ct. 2378, 2385, 165 L. Ed. 2d 368
(2006) (quoting Pozo v. McCaughtry, 286 F.3d 1022, 1024 (7th Cir. 2002)).
The procedures for challenging a decision of confinement by the BOP are detailed in the
Administrative Remedy Program, 28 C.F.R. §§ 542.10 et seq. The Program provides for several
steps which prisoners must follow. First, the prisoner must attempt to resolve the complaint
informally with the staff. 28 C.F.R. § 542.13(a). If an informal resolution cannot be found, an
inmate must submit a formal written Administrative Remedy Request to the Warden through a
“BP-9” form within 20 days of the events which form the basis of the inmate’s request. 28
C.F.R. § 542.14(a). An inmate dissatisfied with the Warden’s response to the BP-9 request may
submit an appeal to the Regional Director via a “BP-10” form within 20 days of the date the
Warden signed the BP-9 form. 28 C.F.R. § 542.15(a). Lastly, an inmate dissatisfied with the
Regional Director’s response may appeal to the BOP’s Office of General Counsel via a “BP-11”
form within 30 days of the date the Regional Director signed the response. Id. “Appeal to the
General Counsel is the final administrative appeal.” Id. Only when these administrative
remedies have been exhausted, may the inmate proceed to file a habeas petition.
In the instant case, it is undisputed that Darling has not engaged in the administrative
process to address his challenge to his sentence. Darling asks, however, that the exhaustion
requirement be excused. “Some courts have recognized the potential for a waiver of the
[3]

Case 1:22-cv-11664-JGD Document 22 Filed 01/19/23 Page 4 of 8

administrative exhaustion requirement for § 2241 petitions where a petitioner can show that
fulfilling the requirement would be futile.” Levine, 2021 WL 681689, at *3. See also RodriguezRosa v. Spaulding, Civil Action No. 19-11984-MBB, 2020 WL 2543239, at *10 (D. Mass. May 19,
2020) (and cases cited). Other courts have excused a failure to exhaust where a claim is limited
to statutory construction. See, e.g., Coleman v. U.S. Parole Comm’n, 644 F. App’x 159, 162 (3d
Cir. 2016) (“exhaustion is not required with regard to claims which turn only on statutory
construction”). Still others have excused exhaustion where requiring the petitioner to engage
in the administrative process would cause irreparable injury, as the petitioner would be
incarcerated beyond their sentence. See, e.g., Nelson v. Cox, C/A, No. 4:20-cv-04199-KES, 2021
WL 1221178, at *2 (D.S.D. April 1, 2021) (petition challenging application of earned time credits
allowed to proceed without exhaustion where petitioner “has alleged facts to show that
requiring him to exhaust his administrative remedies before coming into court would cause him
irreparable harm because he is allegedly already entitled to be released from prison.”). There is
also support for the proposition that a prisoner may be excused from exhausting all
administrative remedies before filing a § 2241 petition if the petitioner can make a showing of
“cause and prejudice.” Dunbar v. Sabol, 649 F. Supp. 2d 1, 4 (D. Mass. 2009) (citing Carmona v.
U.S. Bureau of Prisons, 243 F.3d 629, 630 (2d Cir. 2001)). Finally, but without limitation, courts
have held that they “may skip over the exhaustion issue if it is easier to deny (not grant, of
course, but deny) the petition on the merits without reaching the exhaustion question.”
Montoya Villagomez v. Knight, 2021 WL 6494745, at *4 (D.S.C. June 16, 2021) (internal
quotation and citation omitted).

[4]

Case 1:22-cv-11664-JGD Document 22 Filed 01/19/23 Page 5 of 8

In the instant case the Court declines to rely on the exhaustion requirement and will
address the issues raised in Darling’s habeas petition on the merits. In the usual case, the
administrative process is helpful to develop the factual record. Here, Darling has raised a
straightforward issue, and requiring him to proceed administratively might cause him
irreparable harm as, according to his calculations, he should be released immediately.
Moreover, the Respondent has fully explained how Darling’s release date was calculated.
Under these circumstances, the court will address the merits of the habeas petition.
III. ANALYSIS
Darling contends that he is entitled to an additional 211 days of good-time credits,
which should have been applied before he began his last year of incarceration. As a result,
Darling argues, he should have been released already. According to the BOP, however, it has
calculated Darling’s release date based on all the good-time credits to which he is entitled. This
court agrees.
Prior to 2018, 18 U.S.C. § 3624 provided in relevant part:
(b) Credit toward service of sentence for satisfactory behavior. –
(1) . . . a prisoner who is serving a term of imprisonment of more than 1 year . . . may
receive credit toward the service of the prisoner’s sentence, beyond the time served,
of up to 54 days at the end of each year of the prisoner’s term of imprisonment,
beginning at the end of the first year of the term, subject to determination by the
Bureau of Prisons that, during that year, the prisoner has displayed exemplary
compliance with institutional disciplinary regulations. . . . [C]redit for the last year of
a term of imprisonment shall be credited on the first day of the last year of the term
of imprisonment.
18 U.S.C. § 3624(b)(1) (emphasis added). The BOP originally interpreted this statute as
authorizing it to award good-time credits “only for time actually served rather than for the
length of the sentence imposed.” See Harper v. English, No. 17-3088-SAC, 2017 WL 5158183, at
[5]

Case 1:22-cv-11664-JGD Document 22 Filed 01/19/23 Page 6 of 8

*3 (D. Kan. Nov. 7, 2017). This interpretation was upheld by the Supreme Court in Barber v.
Thomas, 560 U.S. 474, 488, 130 S. Ct. 2499, 2509, 177 L. Ed. 2d 1 (2010) (“In our view, the BOP’s
calculation system applies that statute as its language is most naturally read, and in accordance
with what that language makes clear is its basic purpose.”).
In 2018, however, § 3624(b) was amended to, inter alia, delete the highlighted language
and replace it with “of up to 54 days for each year of the prisoner’s sentence imposed by the
court[.]” Pub.L. 115-391, § 102(b)(1)(A). This amendment assured that “defendants receive the
maximum of 54 days of good conduct time for each year of the sentence that was imposed,
rather than – as had been BOP’s practice – for each year of the sentence that had been actually
served.” United States v. Laurita, No. 8:13CR107, 2019 WL 2603101, at *2 (D. Neb. June 25,
2019).
Darling contends that he is entitled to 211 days of credit for which the BOP has
determined he will qualify in the future. Thus, in a June 2022 report detailing all of the goodtime credits for which Darling could be eligible, the BOP included the following dates for which
Darling had not yet received credit:
1-20-2022 – 1-19-2023

54 days

1-20-2023 – 1-19-2024

54 days

1-20-2024 – 1-19-2025

54 days

1-20-2025 – 12-19-2025

49 days
211 days

(Resp. Ex. C). While Darling contends that he is entitled to those credits now, there is nothing in
the 2018 amendment which altered when the prisoner would receive the good-time credits –
the statutory scheme still required that the days be earned before the days are actually applied.
[6]

Case 1:22-cv-11664-JGD Document 22 Filed 01/19/23 Page 7 of 8

After Darling was committed post-sentencing on October 1, 2015, his projected release
date was December 19, 2025. (Resp. Ex. A). His potential good-time credits, which the BOP
calculated at the rate of 54 days per year for the entire period of his sentence, was 589 days.
(Resp. Ex. C). He lost 7 days for behavioral infractions in 2016, for a potential present total of
582 days. (Id.). If he receives all remaining good conduct time, BOP has calculated his
projected release date as May 16, 2024. (Resp. Ex. A). The BOP also credited Darling with 515
days of FSA credits, which changed his projected release date to May 17, 2023. (Resp. Supp. Ex.
B). 2
Since the BOP calculated the maximum amount of Darling’s good-time credits based on
his sentence, and not his period of incarceration, there was no error. His argument, that under
18 U.S.C. § 3624(b) he is entitled to apply credits even if they have not yet accrued, is without
basis. As 18 U.S.C. § 3624(b)(1) makes clear, the BOP has the authority to award such credits if
the Bureau determines that, “during that year, the prisoner has displayed exemplary
compliance with institutional disciplinary regulations.” Concomitantly, the statute provides
that “if the Bureau determines that, during that year, the prisoner has not satisfactorily
complied with such institutional regulations, the prisoner shall receive no such credit toward
service of the prisoner’s sentence or shall receive such lesser credit as the Bureau determines
to be appropriate.” Id. As the Respondent argues:
because GCs [good-time credits] are earned and depend on good behavior while
incarcerated, they cannot be earned in advance. BOP does project an anticipated

FSA credits are earned through participation in programs designed to assist the inmate with reentry
into society, based on a needs assessment. See 18 U.S.C. § 3632(d)(4). Darling does not dispute the
calculation of his FSA credits, or how the BOP applied those credits, so they will not be discussed in
detail any further.
2

[7]

Case 1:22-cv-11664-JGD Document 22 Filed 01/19/23 Page 8 of 8

release date, taking into account the maximum GCs an inmate may accumulate. That
does not mean that an inmate will, in fact, earn all of those GCs.
(Resp. Supp. Mem. at 3) (emphasis in original). Here, the BOP properly calculated Darling’s
release date by projecting the amount of good time credits he could earn based on his entire
sentence. There was no error.
IV. CONCLUSION
For all the reasons detailed herein, Darling’s Petition for Habeas Relief is DENIED.
/ s / Judith Gail Dein
Judith Gail Dein
United States Magistrate Judge

[8]