Alvarez-Garcia v. United States of America

Filing 12

OPINION AND ORDER OF DISMISSAL: It is therefore ORDERED that petitioner Juan Alvarez-Garcia's petition for relief under 28 U.S.C. § 2241 is DISMISSED for want of exhaustion, and alternatively, DISMISSED with prejudice. (Ordered by Judge Mark Pittman on 3/26/2024) (sre)

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
JUAN ALVAREZ-GARCIA,
Petitioner,
v.

Civil No. 4:23-cv-1006-P

CHRIS RIVERS, Warden,
FMC-Fort Worth,1
Respondent.
OPINION AND ORDER OF DISMISSAL
Petitioner, Juan Alvarez Garcia, a federal prisoner, filed a petition
for a writ of habeas corpus (ECF No. 1) under 28 U.S.C. § 2241, alleging
that he had not received time credits to which he is entitled. The Court,
having considered the petition, the response, the record, and applicable
authorities, concludes that the petition must be DISMISSED for the
alternative reasons set forth.
I.

FACTS/BACKGROUND
The First Step Act (FSA) creates a system of earned time credits
and other incentives to encourage prisoners to participate in and
complete evidence-based recidivism reduction (EBRR) programs and
productive activities. 18 U.S.C. § 3632(d). It permits qualifying inmates
to apply earned time credits towards prerelease community-based
placement—for example, in a Residential Reentry Center (RRC) and/or
home confinement. 18 U.S.C. § 3624(g)(2); 28 C.F.R. § 523.44(b)-(c). And,
at the discretion of the Director, FSA Time Credits may be applied

1 Chris Rivers is now the Warden at FMC-Fort Worth, and thus should
be substituted as respondent. The Clerk of Court is directed to make this
update on the docket.

1

towards release to supervision at an earlier date, not to need 12 months.
18 U.S.C. § 3624(g)(3); 28 C.F.R. § 523.44(d). On February 6, 2023, the
BOP issued a revised Program Statement 5410.01, First Step Act of 2018
– Time Credits: Procedures for Implementation of 18 U.S.C. § 3632(d)(4),
whereby the BOP, among other applications, applies earned time credits
towards early
transfer to supervised release for individuals with a detainer.2 However,
“[a] prisoner is ineligible to apply time credits…if the prisoner is the
subject of a final order of removal under any provision of the immigration
laws [] of the Immigration and Nationality Act.” 18 U.S.C. § 3632(d)(E)(i);
28 C.F.R. § 523.44(a)(2).
The § 2241 petition in this case asks whether the FSA allows the
BOP to implement policy which precludes federal prisoners with pending
criminal charges or detainers from having their accrued earned time
credits applied towards early release. Pet. 2, ECF No. 1. Alvarez-Garcia
asserts that the FSA mandates application of earned time, and the only
exceptions are for inmates with a conviction identified under 18 U.S.C. §
3632(d)(4)(D) or with a “final order of removal.” Id. at 3-4. AlvarezGarcia states his “detainer applies to a deportation hearing” and not a
final order, thus he is entitled to application of his FSA Time Credits. Id.,
at 7. He requests the Court order the BOP to calculate and apply earned
time credits and “give notice to the authority issuing the detainer of his
newly calculated release date.” Id. at 17.
II.

ANALYSIS
A.
Lack of Exhaustion
A federal prisoner must exhaust administrative remedies before
seeking habeas relief in federal court. Fuller v. Rich, 11 F.3d 61, 62 (5th
Cir. 1994). As Respondent explains, the Bureau of Prisons has a threestep administrative remedy program that inmates must follow. Resp. 2-

2 The

revised policy is at: 5410_cn.pdf(bop.gov)
https://www.bop.gov/policy/progstat/5410.01_cn.pdf.

4, ECF No. 9. The record reflects that Alvarez-Garcia failed to exhaust
his administrative remedies with regard to the claim he presents here.
App. (Declaration of BOP Executive Assistant Matthew Gjurgevich with
Attachments) 1–4, ECF No. 10. He has not made any attempt to show
that exceptional circumstances exist that would make exhaustion futile.
See Rourke v. Thompson, 11 F.3d 47, 49 (5th Cir. 1993). Thus, the case
must be dismissed for lack of exhaustion.
B.

Petitioner Not Eligible for First Step Act Time

Credits
Alvarez-Garcia argues that he is entitled to earlier release from
prison upon proper application of his FTCs and that he has not had time
credits applied to his sentence. Alvarez-Garcia is not entitled to FTCs
towards his federal sentence, however, because he has a final order of
removal issued by ICE. App. 12-13, ECF No. 10. A final order of
deportation precludes application of FSA Time Credits. 18 U.S.C. §
3632(d)(E)(i); 28 C.F.R. § 523.44(a)(2); see supra, n. 1, p. 13; see also Pet.
3-4, ECF No. 1 (acknowledging a final order of deportation prohibits
application of time credits).
In creating the time credit system, Congress decided to exclude
categories of inmates from applying time credits, including inmates with
final orders of removal:
(E) Deportable prisoners ineligible to apply time credits.
(i) A prisoner is ineligible to apply time credits under
subparagraph (C) if the prisoner is the subject of a final
order of removal under any provision of the immigration
laws (as such term is defined in section 101(a)(17) of the
Immigration and Nationality Act (8 U.S.C. 1101(a)(17))).
18 U.S.C. § 3632(d)(4)(E)(i).
Alvarez-Garcia is the subject of a final order of removal and as
such, he is statutorily precluded from applying any FTCs he may have

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FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
REGINALEA KEMP,
Plaintiff,
earned.
App. 13, ECF No. 10. A final order of
removal
precludes
v.
No.
4:23-cv-00841-P
application of FSA Time Credits. 18 U.S.C. § 3632(d)(E)(i); 28 C.F.R. §

REGIONS Bsee
ANKsupra,
ET ALn.
., 1, p. 13; see also Pet. at 3-4, ECF No. 1
523.44(a)(2);
(acknowledging a final order of deportation prohibits application of time
Defendants.
credits). As such, even if Alvarez-Garcia had exhausted administrative
ORDER
remedies, which he did not, he still would not be entitled to the
Before of
the
Court
Plaintiff’s
Unopposed
Motion
Leave
to File
application
FTCs
he is
currently
seeks.
Accordingly,
thisfor
§ 2241
petition
Second
Amended Complaint.
ECFwith
No. prejudice.
18. Having considered the Motion
should
alternatively
be dismissed
and applicable docket entries, the Court GRANTS the Motion.
III. CONCLUSION and ORDER
SO ORDERED on this 18th day of September 2023.
It is therefore ORDERED that petitioner Juan Alvarez-Garcia’s

petition for relief under 28 U.S.C. § 2241 is DISMISSED for want of
exhaustion, and alternatively, DISMISSED with prejudice.
SO ORDERED this 26th day of March 2024.

______________________________________________
Mark T. Pittman
UNITED STATED DISTRICT JUDGE

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