GOODMAN v. ORTIZ

Filing 12

OPINION. Signed by Judge Renee Marie Bumb on 8/5/2020. (tf,)

Case 1:20-cv-07582-RMB Document 12 Filed 08/25/20 Page 1 of 16 PageID: 141

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
________________________
:
ARYEH GOODMAN,
:
:
Civ. No. 20-7582 (RMB)
Petitioner
:
:
v.
:
OPINION
:
DAVID ORTIZ, Warden,
:
:
Respondent
:
________________________
:
APPEARANCES
E. Danya Perry, Esq.
Samidh Guha, Esq.
Peter A. Gwynne, Esq.
PERRY GUHA LLP
35 East 62nd Street
New York, New York 10065
Thomas R. Valen
GIBBONS, PC
One Gateway Center
Newark, NJ 07102-5310
On behalf of Petitioner
Kristin L. Vassallo, AUSA
Office of the U.S. Attorney
District of New Jersey
970 Broad Street
Newark, NJ 07102
John Andrew Ruymann, AUSA
Office of the U.S. Attorney
District of New Jersey
402 East State Street, Suite 430
Trenton, NJ 08608
On behalf of Respondent

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BUMB, United States District Judge
This matter comes before the Court upon Petitioner Rabbi Aryeh
Goodman’s pro se petition for writ of habeas corpus under 28 U.S.C.
§ 2241, (Pet., Dkt. No. 1), Respondent’s Answer, (Answer, Dkt. No.
4), and Petitioner’s counseled Reply (Reply, Dkt. No. 9).
Petitioner, a federal inmate at FCI Fort Dix, alleges that
the Federal Bureau of Prisons (“BOP”) has failed to apply his
“Earned Time” credits for “Evidence-Based Recidivism Reduction
Training” under the First Step Act, 18 U.S.C. § 3632(d)(4)(A), a
recently

enacted

reintegration

statute
society.

into

aimed

at

Petitioner

assisting
contends

prisoners’

that

the

BOP

should have given him credit for his participation in the training
program and he should have therefore been released on July 5, 2020.
(Pet., Dkt. No. 1, Petr’s Aff., Dkt. No. 1-2.) The BOP disagrees,
arguing that its obligation to apply Earned Time credits does not
take effect until the end of the phase-in period, which is January
15, 2022. (Answer, Dkt. No. 4.)1
For the reasons set forth below, the Court will grant habeas
relief.

1

Jurisdiction is proper under 28 U.S.C. § 2241 because Petitioner
challenges the duration of his confinement. Leamver v. Fauver, 288
F.3d 532, 542 (3d Cir. 2002).
2 

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I.

BACKGROUND
In April 2019, Petitioner pled guilty before the Honorable

Chief

Judge

Freda

Wolfson

to

interstate

travel

in

aid

of

a

racketeering enterprise, in violation of 18 U.S.C. § 1952(a)(3).
United States v. Goodman, No. 19-CR-265 (FLW), (D.N.J., Dkt. No.
29.) On August 28, 2019, Chief Judge Wolfson sentenced Petitioner
to

an

eighteen-month

term

of

imprisonment.

(Declaration

of

Christina Clark (“Clark Decl.”), Ex. A, Dkt. No. 4-3.) Assuming
Petitioner receives all good time credits available to him, but
none of the Earned Time credits awarded under the First Step Act,
which are at issue here, his projected release date is January 20,
2021. (Id.)
As noted, the First Step Act offered prisoners an opportunity
to earn credit towards their sentences.

Under the Act, the BOP

created a risk and needs assessment system, titled “Prisoner
Assessment Tool Targeting Estimated Risk and Needs” (“PATTERN,”)
in compliance with the First Step Act, 18 U.S.C. § 3632(a). (Answer
at 3-4, Dkt. No. 4.) The First Step Act required the BOP, among
other things,

to

“determine the type and amount of evidence-

based recidivism reduction programming that is appropriate for
each

prisoner

and

assign

each

prisoner

to

such

programming

accordingly….” 18 U.S.C.A. § 3632(a)(3).
Pursuant to 18 U.S.C. § 3632(d)(4), prisoners shall earn time
credits for participation in such programs:
3 

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(4) Time credits.—
(A) In general.--A prisoner, except for an
ineligible prisoner under subparagraph (D),
who successfully completes evidence-based
recidivism
reduction
programming
or
productive activities, shall earn time
credits as follows:
(i) A prisoner shall earn 10 days of time
credits for every 30 days of successful
participation
in
evidence-based
recidivism
reduction
programming
or
productive activities.
(ii) A prisoner determined by the Bureau
of Prisons to be at a minimum or low risk
for recidivating, who, over 2 consecutive
assessments, has not increased their risk
of recidivism, shall earn an additional
5 days of time credits for every 30 days
of successful participation in evidencebased recidivism reduction programming
or productive activities.
(B) Availability.--A prisoner may not earn
time credits under this paragraph for an
evidence-based recidivism reduction program
that the prisoner successfully completed—
(i) prior to the date of enactment of
this subchapter; or
(ii) during official detention prior to
the date that the prisoner's sentence
commences under section 3585(a).
Petitioner asserts that Respondent either admitted or was
silent to the following sworn statements in Petitioner’s Affidavit
in Support of his Petition (“Pet. Aff.”) (Dkt. No. 1-2):


Petitioner is eligible for earned credits under the First
Step Act (“the Act”). (Answer at 5 n.2, Dkt. No. 4);

4 

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

Petitioner’s Case Manager did an initial needs assessment and
found him to be at a “low” risk of recidivism, satisfying the
requirement in 18 U.S.C. § 3632(a)(1). (Pet. Aff. ¶1.3, Dkt.
No. 1-2);



Petitioner was assessed as a low risk of recidivism for a
second time on May 12, 2020, entitling him to 15 days of time
credits for every 30 days of Programming under 18 U.S.C. §
3632. (Pet. Aff. ¶¶ 4.2-4.3, Dkt. No. 1-2; Ex. 3, Dkt. No. 11 at 10);



A Case Manager “determined and assigned [Programming]
Activities” for Petitioner at meetings held on November 26,
2019 and January 20, 2020. (Pet. Aff. ¶¶ 2.2, Dkt. No. 1-2;
Ex. 1, Dkt. No. 1-1 at 1-2);



These assignments met the requirements of the Act, and the
Case Manager explicitly confirmed to Petitioner that they
qualified under the Act. (Pet. Aff. ¶¶ 3-3.2, Dkt. No. 1-2;
Ex. 2, Dkt. No. 1-1 at 3-9);



Petitioner successfully participated (and
participate) in this programming. (Id.)



Petitioner has accumulated 240 days of credit, which under 18
U.S.C. §§ 3632(d)(4), 3635 serves to reduce his sentence by
120 days. (Pet. Aff. ¶¶ 4.4; 5.1-5.3, Dkt. No. 1-2.)



If Petitioner’s days of credit are applied upon program
completion, under 18 U.S.C. §§ 3632(d)(4), 3635, he should
have been released on July 5, 2020. (Pet. Aff. ¶ 4.4, Dkt.
No. 1-2.)

continues

to

Thus, because the BOP does not dispute that Petitioner earned the
time credits, Petitioner seeks immediate application of those
credits under the First Step Act.
The BOP makes two arguments in opposition to Petitioner’s
request for habeas relief. First, it contends that Petitioner
failed to exhaust his administrative remedies. Second, it argues
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that the BOP is not required to award any PATTERN earned credit
until the two-year phase-in period under the statute has expired,
to wit, January 15, 2022. The Court turns to each argument.
II.

DISCUSSION
A.

Exhaustion of Administrative Remedies

The

parties

acknowledge

that

there

is

an

administrative

remedy exhaustion requirement applicable to petitions for writ of
habeas corpus under 28 U.S.C. § 2241, but that there are exceptions
to the requirement. See Cerverizzo v. Yost, 380 F. App'x 115, 116
(3d Cir. 2010) (citing Woodall v. Fed. Bureau of Prisons, 432 F.3d
235, 239 n. 2 (3d Cir. 2005); Schandelmeier v. Cunningham, 819
F.2d 52, 53 (3d Cir. 1986); Gambino v. Morris, 134 F.3d 156, 171
(3d Cir. 1998) (Roth, J., concurring)). Here, there is no dispute
that

Petitioner

did

not

exhaust

the

final

level

of

the

BOP

administrative remedy program prior to filing his habeas petition.
This case, however, presents a narrow dispute of statutory
construction which is exempt from the exhaustion requirement. See
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”) (citing Harris v. Martin, 792 F.2d 52,
54 n. 2 (3d Cir. 1986)). Moreover, because the Court finds habeas
relief should be granted, exhaustion is excused. See Gambino, 134
F.3d at 171 (“exhaustion is not required when the petitioner
demonstrates that it is futile.”)
6 

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B.

The First Step Act PATTERN Program

“The First Step Act, Pub. L. No. 115-015, 132 Stat. 015
(2018),

signed

into

law

on

December

21,

2018,

provides

comprehensive federal criminal justice reform by, inter alia,
creating

a

new

risk

and

needs

assessment

system

to

provide

appropriate programming for prisoners….” Musgrove v. Ortiz, No. CV
19-5222 (NLH), 2019 WL 2240563, at *2 (D.N.J. May 24, 2019). The
First Step Act added the following relevant subsections to 18
U.S.C. § 3621:
(h)
Implementation
assessment system.—

of

risk

and

needs

(1) In general.--Not later than 180 days
after the Attorney General completes and
releases the risk and needs assessment
system [release occurred on July 19, 2019]
(referred to in this subsection as the
“System”) developed under subchapter D, the
Director of the Bureau of Prisons shall, in
accordance with that subchapter—
(A) implement and complete the initial
intake risk and needs assessment for each
prisoner (including for each prisoner who
was a prisoner prior to the effective
date of this subsection), regardless of
the prisoner's length of imposed term of
imprisonment,
and
begin
to
assign
prisoners to appropriate evidence-based
recidivism reduction programs based on
that determination;
(B) begin to expand the effective
evidence-based
recidivism
reduction
programs and productive activities it
offers and add any new evidence-based
recidivism
reduction
programs
and
productive
activities
necessary
to
7 

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effectively implement the System; and
(C) begin to implement the other risk and
needs assessment tools necessary to
effectively implement the System over
time, while prisoners are participating
in and completing the effective evidencebased recidivism reduction programs and
productive activities.
(2) Phase-in.--In order to carry out
paragraph (1), so that every prisoner has
the opportunity to participate in and
complete the type and amount of evidencebased recidivism reduction programs or
productive activities they need, and be
reassessed for recidivism risk as necessary
to effectively implement the System, the
Bureau of Prisons shall—
(A)
provide
such
evidence-based
recidivism
reduction
programs
and
productive activities for all prisoners
before the date that is 2 years after the
date on which the Bureau of Prisons
completes a risk and needs assessment for
each prisoner under paragraph (1)(A); and
(B) develop and validate the risk and
needs assessment tool to be used in the
reassessments of risk of recidivism,
while prisoners are participating in and
completing
evidence-based
recidivism
reduction
programs
and
productive
activities.
(3) Priority during phase-in.--During the
2-year
period
described
in
paragraph
(2)(A), the priority for such programs and
activities shall be accorded based on a
prisoner's proximity to release date.
(4) Preliminary expansion of evidence-based
recidivism reduction programs and authority
to use incentives.--Beginning on the date
of enactment of this subsection, the Bureau
of Prisons may begin to expand any evidence8 

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based recidivism reduction programs and
productive activities that exist at a
prison as of such date, and may offer to
prisoners who successfully participate in
such programs and activities the incentives
and rewards described in subchapter D.
18 U.S.C. § 3621(h)(1-4). Thus, according to § 3621(h), the BOP
was required to create the risk and needs assessment system by
January 15, 2020, begin implementing it on that date, and with
full implementation complete on January 15, 2022.
1.

Respondent’s Argument

Respondent contends that the BOP met the First Step Act’s
requirement,

on

July

19,

2019,

to

develop

a

risk

and

needs

assessment system, “PATTERN” within 210 days of the law’s enactment
on December 18, 2018. (Answer at 3-4, Dkt. No. 4.) By January 15,
2020, the BOP implemented and completed an initial intake risk and
needs assessment for each prisoner and began to assign prisoners
to appropriate evidence-based recidivism reduction programs based
on that determination, within 180 days of PATTERN’s release date.
(Answer at 5, citing 18 U.S.C. § 3621(h)(1)(A)). Respondent,
however, also contends that the statute “gives the BOP two years
after it completes the risk and needs assessment for each prisoner
to ‘phase in’ the program implementation,” including by awarding
“Earned Time” credits, that is, by January 15, 2022. (Answer at 5,
citing Herring v. Joseph, 2020 WL 3671375, at *3 (N.D. Fla June
22,

2020.)

Therefore,

the

BOP

9 

concludes,

its

obligation

to

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implement the evidence-based reduction program and award Earned
Time credits “has not yet taken effect[.]” (Answer at 5, citing
Bowling v. Hudgins, No. 19-285, 2020 WL 1918248, at *4 (N.D.W. Va.
Mar. 16, 2020) (same), report and recommendation adopted, 2020 WL
1917490 (N.D.W. Va. Apr. 20, 2020). In sum, Respondent asserts
that Congress rationally chose to give BOP a reasonable time to
develop and implement a new approach to award Earned Time credit
to a prisoner. (Answer at 5.)
2.

Petitioner’s Argument

Petitioner agrees that the plain language of 18 U.S.C. §
3621(h)(1) required the BOP to begin implementing the risk and
needs assessment program on January 15, 2020. (Reply at 5, Dkt.
No. 9.) This is not in dispute. According to Petitioner, however,
under § 3621(h)(2), the program must “gradually expand to apply to
‘all’ prisoners by the end of the phase-in period on January 15,
2022.” (Id.) Thus, January 15, 2022 is not the date when the
program “takes effect,” as Respondent claims but it is the “outer
limit on when BOP must make programming and the resulting credits
available to ‘all’ prisoners.” (Reply at 6, citing 18 U.S.C. §
3621(h)(2))
Petitioner specifically relies on the text of § 3621(h)(3):
“[P]riority during phase-in,” which requires that “[d]uring the 2year period described in paragraph (2)(A), the priority for such
programs and activities shall be accorded based on a prisoner’s
10 

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proximity to release date.” (Reply at 7, Dkt. No. 4.) Under
Respondent’s faulty interpretation, Petitioner argues, there would
not be “priority” assigned during the phase-in because no one would
have access to programs, activities or incentives. (Id.) In other
words, such interpretation is at odds with the plain language of
the statute.
Finally,

Petitioner

cites

to

statements

by

the

Attorney

General and the BOP which are consistent with awarding credit for
risk recidivism programming prior to January 15, 2022. (Reply at
7-8.) First, on January 15, 2020, the Justice Department released
a statement regarding its performance under the Act:
Beginning today, inmates will have even
greater incentive to participate in evidencebased
programs
that
prepare
them
for
productive lives after incarceration … As of
Jan. 15, 2020, inmates will be assigned to
participate in [Programs] based on an initial
needs
assessment
…
Participation
and
completion of those assigned programs and
activities can lead to placement in prerelease custody or a 12-month sentence
reduction under the First Step Act.
(Id.)2 Further, “Frequently Asked Questions” on the BOP’s website
provides:
When can inmates begin earning time credits?
FSA

Time

Credits

(FTC)

may

be

earned

for

2

The Justice Department Memo, “Department of Justice Announces
Enhancements to the Risk Assessment System and Updates on
First Step Act Implementation (Jan 15, 2020)” is available at
https://www.justice.gov/opa/pr/department-justice-announcesenhancements-risk-assessment-system-and-updates-first-step-act
11 

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completion
of
assigned
[Programs]
or
productive activities authorized by BOP and
successfully completed on or after January 15,
2020.
(Reply at 8, Dkt. No. 9.)3
C.

Statutory Construction of the Act

When embarking on a task of statutory construction “words
generally

should

be

“interpreted

as

taking

their

ordinary,

contemporary, common meaning ... at the time Congress enacted the
statute.’” Wisconsin Cent. Ltd. v. United States, 138 S. Ct. 2067,
2074 (2018) (quoting Perrin v. U.S., 444 U.S. 37, 42 (1979)).
Courts must also bear in mind the “‘fundamental canon of statutory
construction that the words of a statute must be read in their
context and with a view to their place in the overall statutory
scheme.’” Util. Air Regulatory Grp. v. E.P.A., 573 U.S. 302, 319–
20 (2014) (quoting FDA v. Brown & Williamson Tobacco Corp., 529
U.S. 120, 133 (2000)). “When the words of a statute are unambiguous
… judicial inquiry is complete.” Connecticut Nat. Bank v. Germain,
503 U.S. 249, 254 (1992) (quotation omitted). Agencies exercise
discretion only in the interstices created by statutory silence or
ambiguity; they must always ‘give effect to the unambiguously
expressed intent of Congress.’” Util. Air Regulatory Grp., 573
U.S. at 326 (quoting National Assn. of Home Builders v. Defenders

3

“First Step Act – Frequently Asked Questions: When can inmates
begin earning time credits?” available at
https://www.bop.gov/inmates/fsa/faq.jsp#fsa_time_credits.
12 

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of Wildlife, 551 U.S. 644, 665 (2007) (quoting Chevron, U.S.A,
Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843
(1984)).
Turning to the statutory language here, first, 18 U.S.C. §
3621(h)(2) requires phase-in of the risk recidivism program. The
ordinary meaning of “phase-in” is to implement gradually. The
purpose of phasing in the program is expressly defined by §
3621(h)(2)

“so

that

every

prisoner

has

the

opportunity

to

participate in and complete the type and amount of evidence-based
recidivism reduction programs or productive activities they need.”
Next, to determine whether the BOP is required to apply
Petitioner’s Earned Time credits before the January 15, 2022
completion date for the phase-in, the “‘statute must be read in
[its] context and with a view to [its] place in the overall
statutory scheme.’”

Util. Air Regulatory Grp., 573 U.S. at 320

(quoting FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120,
133 (2000)). In this regard, Section 3621(h)(1)(C) requires the
BOP to “begin to implement … tools necessary to effectively
implement the System over time, while prisoners are participating
in

and

completing

the

effective

evidence-based

recidivism

reduction programs and productive activities” (emphasis added.)
Clearly, as the plain language states, this statutory provision
anticipates that some prisoners will complete the programs within
the 2-year phase-in period.
13 

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Furthermore, Section 3621(h)(3) instructs that “[d]uring the
2-year period described in paragraph (2)(A), the priority for such
programs and activities shall be accorded based on a prisoner's
proximity to release date.” Thus by making it a priority to provide
the programs to prisoners based on proximity to their release
dates, the statute makes it clear that prisoners who earned
sufficient

time

credits

during

the

phase-in

period

could

be

released prior to the end-date for the two-year phase-in.
Subsection (h)(4) of § 3621 supports this interpretation. It
provides, in relevant part (emphasis added):
the Bureau of Prisons may begin to expand any
evidence-based recidivism reduction programs
and productive activities that exist at a
prison as of such date [January 15, 2020], and
may offer to prisoners who successfully
participate in such programs and activities
the incentives and rewards described in
subchapter D.
Thus, while the statute does not explicitly provide a date
when

the

BOP

must

apply

a

prisoner’s

earned

credits

from

participation in recidivism reduction programs, it does require a
2-year phase-in, not only of participation in the programs, but of
incentives for participation in the programs.
The Court finds no evidence in the statutory framework for
delaying application of incentives earned by all prisoners during
the phase-in program until January 15, 2022, the final date when
BOP must complete the phase-in with respect to “all prisoners.”

14 

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See § 3621(h)(2)(A). Even the use of the words “all prisoners”
indicates that all prisoners must be afforded the PATTERN program
but does not exclude that some prisoners will participate in, earn
incentives and complete the program before the end of the phasein period. Indeed, the Attorney General’s January 15, 2020 memo
and BOP’s “Frequently Asked Questions” describing the PATTERN
program incentives are consistent with this interpretation.4 The
ordinary meaning of “phase-in” combined with analysis of the
statutory

framework

of

conclusion

that

the

recidivism

program,

§

BOP

3621(h)
must

including

unambiguously

gradually
the

supports

implement

priority

the

application

the
risk
of

incentives to prisoners whose release dates are nearer, such as
Petitioner.
III. CONCLUSION
The BOP’s position that a prisoner can complete the PATTERN
program before January 15, 2022 with no benefit to the prisoner is
contrary to the statutory language, not to mention the unfairness
of such a result. Therefore, the Court concludes that Petitioner
is entitled to habeas relief.

The Court will direct the BOP to

immediately apply Petitioner’s Earned Time credit of 120 days in
an accompanying Order.

4

 See supra notes 2 and 3. 

15 

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Date: August 25, 2020
s/Renée Marie Bumb
RENÉE MARIE BUMB
UNITED STATES DISTRICT JUDGE

16