J.S.2. v. Federal Bureau of Prisons et al

Filing 34

ORDER ADOPTING REPORT AND RECOMMENDATIONS for 33 Report and Recommendations. For the foregoing reasons, the Court OVERRULES the Government's objections, ADOPTS the R&R in its entirety, and GRANTS petition for a writ of habeas corpus. SO ORDERED. (Signed by Judge Analisa Torres on 1/24/24) (yv) Transmission to Orders and Judgments Clerk for processing.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
PERSON DOE,

01/24/2024

Petitioner,
-against-

23 Civ. 5965 (AT)

FEDERAL BUREAU OF PRISONS and
WARDEN OF FCI,

ORDER

Respondents.
ANALISA TORRES, District Judge:
Petitioner pro se,

,1 brings this petition for a writ of habeas corpus, pursuant to 28 U.S.C.

§ 2241, arguing that the time credits that they accrued pursuant to the First Step Act (“FSA”) require
transfer to prerelease custody. Pet., ECF No. 1. On September 18, 2023, the Court referred
petition to the Honorable James L. Cott for a report and recommendation (“R&R”). ECF No.
10. On December 28, 2023, Judge Cott recommended that

petition be granted. R&R, ECF

No. 22. On January 16, 2024, the Government timely objected, arguing that Petitioner’s participation
in the Federal Witness Protection Program (the “Program”) requires that Petitioner choose between
prerelease custody and continued protection pursuant to the Program. Gov. Obj. at 2, ECF No. 27.
For the following reasons, the Court OVERRULES the Government’s objections and ADOPTS the
R&R.
BACKGROUND
I.

Legal Background
A. Federal Witness Protection Program
“The Attorney General may provide for the . . . protection of a witness or a potential witness

for the Federal Government.” 18 U.S.C. § 3521(a)(1);

Supp. Decl. ¶ 4,

.

The Court granted Petitioner’s motion to proceed under a pseudonym and ordered the docket sealed because of
Petitioner’s status as a cooperating witness. ECF No. 11.
1

“Before providing protection to any person under [the Program], the Attorney General shall enter into
a memorandum of understanding with that person,” which “set[s] forth the protection which the
Attorney General has determined will be provided . . . and the procedures to be followed in the case
of a breach.” 18 U.S.C. § 3521(d)(1). “The Attorney General may terminate the protection provided
. . . to any person who substantially breaches the memorandum of understanding” after providing
notice and the reasons for the termination. Id. § 3521(f). A termination decision by the Attorney
General is not subject to judicial review. Id.; see J.S. v. T’Kach, 714 F.3d 99, 104 (2d Cir. 2013)
(Section 3521(f) “leaves a district court without power or discretion to hear challenges to Program
terminations.”).
Multiple government agencies are involved in administering the Program.

the Bureau of Prisons (the “BOP”) manages the security of individuals who
are in custody—referred to as “prisoner witnesses” (“PWs”).

B. First Step Act
On December 21, 2018, the FSA was signed into law. See Pub. L. No. 115-391, 132 Stat.
5194 (amending 18 U.S.C. § 3621 et seq.). Pursuant to the FSA, the BOP “shall transfer eligible
prisoners, as determined under section 3624(g), into prerelease custody or supervised release.” 18
U.S.C. § 3632(d)(4)(C). If a prisoner was sentenced to a term of supervised release following
incarceration, the BOP “may transfer the prisoner to begin any such term of supervised release at an
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earlier date, not to exceed 12 months.” Id. § 3624(g)(3). If the BOP decides not to move up the
supervised-release date, or if the prisoner remains eligible after moving up

supervised-release

date, the prisoner “shall be placed in prerelease custody” pursuant to 18 U.S.C. § 3624(g)(2), which
sets forth two forms of prerelease custody: home confinement or a residential reentry center (“RRC”),
colloquially referred to as a halfway house.
To be eligible for transfer to either supervised release or prerelease custody, prisoners must
meet three requirements. First, they must have “earned time credits . . . in an amount that is equal to
the remainder of the prisoner’s imposed term of imprisonment.”2 Id. § 3624(g)(1)(A). Second, they
must show “a demonstrated recidivism risk reduction” or “maintain[] a minimum or low recidivism
risk.”3 Id. § 3624(g)(1)(B). Third, if seeking to transfer to supervised release, they must have been
determined “to be a minimum or low risk to recidivate pursuant to the last reassessment of the
prisoner.” Id. § 3624(g)(1)(D)(ii). If seeking to transfer to prerelease custody, they must have been
determined “to be a minimum or low risk to recidivate pursuant to the last 2 reassessments of the
prisoner” or had a petition approved by the prison warden. Id. § 3624(g)(1)(D)(i).
II.

Factual Background
A.
On

, Petitioner was sentenced to a term of imprisonment of

months for

conspiracy

Petitioner and the Government agreed that Petitioner would participate in the Program.
On

, Petitioner and the Government entered into a memorandum of

2

Incarcerated persons may earn time credits under the FSA by participating in evidence-based recidivism reduction
activities and productive activities while incarcerated. 18 U.S.C. § 3632(d)(4)(A). Persons serving a sentence for certain
enumerated offenses are ineligible to earn time credits. Id. § 3632(d)(4)(D).
3
The recidivism risk assessments are made pursuant to the “risk and needs assessment system” set forth in 18 U.S.C.
§§ 3631–3635.

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understanding (“MOU”),

, and a PW agreement (“PWA”),
.

Petitioner is eligible to be transferred to supervised release on
prior to their release date.

, twelve months

Petitioner has accumulated additional

time credits and, therefore, became eligible for transfer to prerelease custody on

2023.

Petitioner has not been transferred and remains housed in
the BOP prison system.”

B. The MOU and the PWA
Under the MOU, Petitioner is eligible “for the [PW]

Program

The PWA describes Petitioner’s relationship with the BOP. PWA at 14 ¶ A. The BOP “will
designate [Petitioner] to a facility where it is believed [Petitioner] will be safe and [Petitioner’s]
security requirements can be met.” Id. at 14 ¶ B(2). Although consideration “will be given to placing
[Petitioner] in an institution as close to [Petitioner’s] family as possible, . . . [Petitioner’s] safety and
security requirements will be the most important determining factor.” Id. “If the need arises,
designations will be coordinated with

any other agencies deemed

appropriate by the BOP.” Id. at 15 ¶ B(2). The BOP “will authorize and coordinate a redesignation

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should it become necessary to transfer [Petitioner] to another facility,” employing the “same
precautions used during the initial designation process.” Id. at 15 ¶ B(4).
The BOP’s other obligations under the PWA include determining whether Petitioner “will be
housed in the
;
transporting Petitioner—
—without compromising their safety, id. at 15 ¶ B(5);

Petitioner “may request removal from the [P]rogram at any time.” Id. at 19 ¶ D(3). The PWA
also specifies procedures for release planning as Petitioner nears the end of BOP custody:

III.

Government’s Objection
On December 28, 2023, the Honorable James L. Cott issued the R&R, recommending that the

Petition be granted. Judge Cott determined that Petitioner sufficiently exhausted their administrative

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remedies and was eligible for pre-release custody as of August 23, 2023. R&R at 10. Examining the
language of the FSA, Judge Cott also held that 18 U.S.C. § 3632(d)(C) “does not afford the BOP any
discretion in releasing eligible prisoners,” id. at 11, and that Petitioner’s PWA—executed before the
FSA was enacted—did not foreclose their early release, id. at 13–15. Judge Cott recommended that if
the BOP “is concerned about its practical ability to maintain the level of security required by the
PWA, . . . it should determine how adequate security could be provided by other government
agencies, rather than refusing to comply with its statutory obligations.” Id. at 16.
On January 16, 2024, the Government timely objected. The Government does not contest the
R&R’s conclusions that Petitioner exhausted their remedies or that Petitioner has accumulated
enough time credits to warrant transfer to prerelease custody. Gov. Obj. at 1. However, the
Government objects to the R&R to the extent that it requires the BOP to provide Program services
during prerelease custody. Id.
To support its objections, the Government submits a declaration from
of the

which “manag[es] the BOP’s part” in the Program.

, chief

Supp. Decl. ¶¶ 1–2.

claims that, although the BOP would retain legal custody over Petitioner if they were
transferred to prerelease custody pursuant to the FSA, id. ¶ 10, the PWA and MOU “do[] not
contemplate the pre-release transfer of a PW to complete his [or her] custodial sentence in a
community setting” like an RRC or home confinement, id. ¶ 9, and “expressly limit[] the acceptable
housing options under the Housing provision [of the PWA] to ones within BOP’s own institutions,”
id. ¶ 11.

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According to

the PWA contemplates “heightened security and supervision,”

The BOP “operationally could not acceptably
mitigate this risk or otherwise provide the level of services contemplated by the PWA.” Id. ¶ 20.
The Government also objects to home confinement,

Both the Government and Petitioner state that Petitioner remains “subject to a very real,
widespread threat.”

Decl. ¶ 18; accord Pet’r Reply Decl. ¶ 9, ECF No. 21.

LEGAL STANDARD
A district court “may accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C). When a party makes
specific objections, the court reviews de novo those portions of the R&R to which objection is made.
Id.; Fed. R. Civ. P. 72(b)(3). The Court may adopt those portions of the R&R to which no objection
is made “as long as no clear error is apparent from the face of the record.” Oquendo v. Colvin, No. 12
Civ. 4527, 2014 WL 4160222, at *2 (S.D.N.Y. Aug. 19, 2014) (citation omitted). An R&R is clearly
erroneous if the reviewing court is “left with the definite and firm conviction that a mistake has been
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committed.” Easley v. Cromartie, 532 U.S. 234, 242 (2001) (citation omitted); see also Travel
Sentry, Inc. v. Tropp, 669 F. Supp. 2d 279, 283 (E.D.N.Y. 2009).
The Court may grant a writ of habeas corpus when a petitioner is “in custody in violation of
the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241(c)(3); Dhinsa v. Krueger,
917 F.3d 70, 79 n.8 (2d Cir. 2019). A petitioner may use Section 2241 to challenge the “computation
of a . . . sentence by prison officials.” Levine v. Apker, 455 F.3d 71, 78 (2d Cir. 2006) (citation
omitted). A petitioner must satisfy their burden of proof by a preponderance of the evidence.
Skaftouros v. United States, 667 F.3d 144, 158 (2d Cir. 2011) (citation omitted).
DISCUSSION
The FSA states that the BOP “shall transfer eligible prisoners, as determined under section
3624(g), into prerelease custody or supervised release.” 18 U.S.C. § 3632(d)(4)(C); see id.
§ 3624(g)(1) (setting forth eligibility criteria). Judge Cott found that the BOP does not have
discretion to impose additional eligibility requirements or refuse to transfer eligible prisoners to
prerelease custody. See R&R at 11–12 (collecting cases).
The Court agrees with Judge Cott and the line of caselaw that he cites.4 See Brodie v. Pliler,
No. 22 Civ. 3821, 2022 WL 16751908, at *4 (S.D.N.Y. Nov. 7, 2022); United States v. Pouryan, No.
11 Cr. 111-6, 2023 WL 3294360, at *1 (S.D.N.Y. May 5, 2023). The FSA sets forth eligibility
criteria for a transfer to prerelease custody and, for prisoners that meet the criteria, uses the
mandatory “shall.” Compare 18 U.S.C. § 3632(d)(4)(C), with id. § 3624(g)(3) (using “may” to
describe the BOP’s authority to move up the supervised-release date); see United States v. Kahn, 5
F.4th 167, 174 (“The word ‘shall,’ in a statute, indicates a command; what follows the word ‘shall’ is
‘mandatory, not precatory.’” (quoting Mach Mining, LLC v. EEOC, 575 U.S. 480, 486 (2015)).

The Government does not explicitly object to the R&R’s holding, but its limited objections implicitly question the
mandatory nature of the FSA. The Court would adopt the R&R’s holding whether it applied a clear-error or de novo
standard of review.
4

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Moreover, the FSA designates which prisoners are ineligible to accrue time credits, see 18 U.S.C.
§ 3632(d)(4)(D), and requires the BOP to “ensure there is sufficient prerelease custody capacity to
accommodate all eligible prisoners.” Id. § 3624(g)(11). The FSA’s comprehensive scheme,
therefore, does not afford the BOP discretion to not transfer an eligible individual to prerelease
custody. Under the FSA, Petitioner is eligible and has sufficient time credits to transfer to prerelease
custody, and the BOP is obligated to implement the transfer.
The Government argues that the PWA is incompatible with the FSA and asks the Court to
order that Petitioner waive either the FSA right or the PWA protections. The Court addresses each of
its arguments in turn.
First, the Government contends that the Court has no jurisdiction to construe the PWA or
require the Government to provide protection pursuant to the Program. Gov. Obj. at 13–15. The
Court lacks jurisdiction to review Program terminations. See Gov. Obj. at 14–15; J.S., 714 F.3d at
104 (citing 18 U.S.C. § 3521(f)). But, the Government has not terminated Petitioner’s access to the
Program, so the jurisdiction-stripping provision does not apply.5
Moreover, the Court has habeas jurisdiction to determine whether Petitioner’s continued
incarceration is unlawful. See 28 U.S.C. § 2241. The Government argues that, if Petitioner insists on
PWA compliance, they waive their FSA right. If Petitioner waives their FSA right to release, then
their incarceration would be lawful. See Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996) (holding
that a plaintiff must demonstrate confinement without consent for a false-imprisonment claim under
New York law and the Fourth Amendment). Therefore, the Court has jurisdiction to decide whether
the FSA and the PWA conflict. See Adams v. United States, 372 F.3d 132, 135 (2d Cir. 2004)

Such termination is limited to either Petitioner’s breach of the PWA or the provision of false information by Petitioner.
Moreover, any Government termination is subject to appeal by Petitioner—
The Government does not claim, nor can it, that Petitioner breached the PWA by
seeking
FSA remedies.
5

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(holding that § 2241 is the “proper means to challenge the execution of a sentence,” including issues
related to sentence computation and the “type of detention” (emphasis in original)). Although the
Government argues that the PWA creates no binding obligations, it is incorrect: courts have enforced
Program obligations through writs of mandamus under 28 U.S.C. § 1361.6 See Garmhausen v.
Holder, 757 F. Supp. 2d 123, 139 (E.D.N.Y. 2010); see also Tisdel v. Witness Protection, No. 21 Civ.
881, 2021 WL 1723521, at *2 (S.D. Tex. Apr. 30, 2021) (finding that “it is possible that [Petitioner]
will be able to establish jurisdiction under the mandamus statute”).
The Government next argues that the PWA conflicts with the FSA because the PWA does not
extend Program services to prerelease custody. Gov. Obj. at 15–17, 21. The Court disagrees. The
PWA states that it applies to Petitioner “while in the custody of the BOP.” PWA at 14. Petitioner
would remain in the custody of BOP if transferred to prerelease custody.

Supp. Decl. ¶ 10.

Therefore, the PWA does not conflict with the FSA.
The Government also contends that because the PWA does not mention that a PW can be
transferred to prerelease custody—despite the existence of prerelease custody when the PWA was
executed—Petitioner is not entitled to transfer to an RRC or home confinement. Id. But, the
Government’s argument ignores the sea change wrought by the FSA. Although prerelease custody
was available prior to the FSA, this custody was limited only “to the extent practicable.” 18 U.S.C.
§ 3624(c)(1). This discretionary language is omitted from the FSA’s directive. Id. § 3632(d)(4)(C);
see Rotkiske v. Klemm, 140 S. Ct. 355, 361 (2019) (“Atextual judicial supplementation is particularly
inappropriate when, as here, Congress has shown that it knows how to adopt the omitted language or
provision.”). The FSA provides Petitioner with a broad right to prerelease custody that does not
hinge on the BOP’s determination of practicability. Moreover, Petitioner could not have waived this

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Indeed, the Government’s request for the Petitioner to excuse it from providing protection services under the PWA
would be unnecessary if the PWA imposed no obligations.

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FSA right by signing the PWA because a defendant can only waive “known rights,” and a right that
does not yet exist cannot be known or, therefore, waived. See United States v. Olano, 507 U.S. 725,
733 (1993).
Next, the Government cites the housing provision of the PWA, which states that the BOP will
decide “whether [Petitioner] will be housed in the
and argues that this limits “where the BOP has discretion to
house” a PW. Gov. Obj. at 15–16. But, as Judge Cott indicated, the Government’s interpretation of
the housing provision is incorrect. R&R at 13. The PWA includes a process by which the BOP shall
designate a facility for Petitioner. See PWA at 14 ¶ B(2). The separate housing provision quoted by
the Government is part of the intake process once a facility has been designated and permits the BOP
to choose between

. See id. at 15–16 ¶ B(6)
The

provision does not limit the facilities to which the PWA applies.
The Government then argues that the PWA applies only when “physical security [is] managed
by the BOP” and does not apply outside of BOP institutions. Gov. Obj. at 16–17. The Government’s
reading of the PWA is contradicted by its text. BOP custody is not limited to BOP institutions: the
PWA contemplates that Petitioner can be held in a state facility and that Petitioner can take part in
short-term activities outside of BOP institutions. Id. at 15 ¶ B(6). The PWA also requires the BOP to
—to provide Program services

coordinate with other agencies—
“when the need arises.” Id. at 15 ¶ B(2).

Finally, the Government claims that the BOP cannot—as a practical matter—provide
security in prerelease custody settings. But, the Government has not demonstrated that it
cannot meet these dual legal obligations. The Government’s explanation
is speculative and not specific to Petitioner. See
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Supp. Decl. ¶ 22

Moreover, the Government’s claim about its ability to
provide security in prerelease custody assesses only the BOP’s capabilities. However, the MOU and
the PWA make clear that Petitioner’s safety is the responsibility of the Government and that the BOP
—to provide services

must coordinate with other agencies—
when it is not capable of doing so. PWA at 15 ¶ 2;
to “determine how

Decl. ¶ 12. Judge Cott directed the BOP

security could be provided by other government agencies, rather than

refusing to comply with its statutory obligations.” R&R at 16. The Government offers no response,
stating only that
setting.

has no arrangement to provide PWs with protection in a prerelease custody
Supp. Decl. ¶ 14. That gap is not of Petitioner’s making, and the Government is

directed to immediately implement a prerelease arrangement that provides Petitioner with adequate
protection. The Court rejects the Government’s contention that Petitioner is obligated to waive their
rights under the PWA in order to be eligible for such services.
CONCLUSION
For the foregoing reasons, the Court OVERRULES the Government’s objections, ADOPTS
the R&R in its entirety, and GRANTS

petition for a writ of habeas corpus.

SO ORDERED.
Dated: January 24, 2024
New York, New York

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