King v. Keyes

Filing 29

ORDER that the petition filed by James King (dkt. 1 ) is denied and this case is dismissed with prejudice. Signed by District Judge William M. Conley on 11/22/2024. (rks),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
_________________________________________________________________________________
JAMES KING,
Petitioner,

OPINION and ORDER

v.

23-cv-667-wmc

WARDEN E. EMMERICH,1
Respondent.
_________________________________________________________________________________
Petitioner James King, who is a prisoner at the Federal Correctional Institution in
Oxford, Wisconsin (“FCI Oxford”) and representing himself, has filed a petition for writ
of habeas corpus under 28 U.S.C. § 2241, alleging he is entitled to pre-release custody by
virtue of time credits he has earned under the First Step Act (“FSA”), 18 U.S.C.
§ 3632(d)(4)(A), also known as FSA Time Credits (“FTCs”). Respondent seeks dismissal
of the petition because: (1) petitioner failed to his exhaust administrative remedies before
seeking relief; and (2) even if he had exhausted the available administrative remedy process,
his petition is without merit because he is not eligible for the time credits he seeks. (Dkt.
#19.) For the reasons explained below, the court will deny the petition and dismiss this
case with prejudice.

The caption has been revised to reflect that E. Emmerich is the current Warden of FCI Oxford,
where petitioner is incarcerated.
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OPINION
Petitioner is serving a 151-month term of incarceration, to be followed by a threeyear term of supervised release, as the result of a conviction in the Middle District of
Pennsylvania for distribution and possession with intent to distribute heroin.

His

projected release date is April 3, 2025. (Dkt. #20, at 3.) Petitioner argues that, with the
application of FTCs, he is entitled to immediate placement in pre-release custody.
The FSA affords eligible inmates the opportunity to earn FTCs, which apply toward
time in pre-release custody or early transfer to supervised release, through successful
participation in “evidence-based recidivism reduction programs or productive activities.”
18 U.S.C. § 3632(d)(4)(C). While the BOP has deemed petitioner eligible to earn FTCs,
it has not applied any of petitioner’s earned credits to move up his release date because his
Prisoner Assessment Tool Targeting Estimated Risk and Needs (“PATTERN”) score is
categorized as “medium.” (Id.) Petitioner argues that BOP’s reliance on his PATTERN
score to deny the application of FTCs to transfer him to prerelease custody violates the
express provision of the FSA that “[t]ime credits earned . . . by prisoners . . . shall be applied
toward time in prerelease custody or supervised release.” 18 U.S.C.A. § 3632(d)(4)(C)
(emphasis added).
A federal prisoner may challenge the execution of his sentence by seeking a writ of
habeas corpus under 28 U.S.C. § 2241. Valona v. United States, 138 F.3d 693, 694 (7th
Cir. 1998) (stating that a motion seeking relief concerning the execution of a sentence, but
not the validity of a conviction, falls under § 2241). To obtain a writ of habeas corpus,
the prisoner must show that he is in custody in violation of the Constitution or laws of the
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United States. 28 U.S.C. § 2241(c)(3). Before seeking relief in federal court, however, the
prisoner must exhaust certain administrative remedies. See Richmond v. Scibana, 387 F.3d
602, 604 (7th Cir. 2004) (observing that the “common-law exhaustion rule applies to §
2241 actions”); Clemente v. Allen, 120 F.3d 703, 705 (7th Cir. 1997) (per curiam) (courts
may “review a claim concerning the computation of a sentence only after administrative
remedies have been exhausted”).
To exhaust administrative remedies, a prisoner incarcerated by the BOP must first
file an informal complaint with institution staff. 28 C.F.R. § 542.13(a). If the complaint
is not resolved informally, a prisoner must file an administrative remedy request on a BP9 form at the institution where he is incarcerated. 28 C.F.R. § 542.14(a). If the prisoner
is unsatisfied with the warden’s response to his BP-9, he may submit an appeal to the
Regional Director on a BP-10 form within 20 days. 28 C.F.R. § 542.15(a). If the prisoner
is unsatisfied with the Regional Director’s response, he may submit an appeal on a BP-11
form to BOP’s Office of General Counsel within 30 days. Id. Exhaustion of administrative
remedies requires complete exhaustion, even if the appeals process results in the denial of
the requested relief. Greene v. Meese, 875 F.2d 639, 641 (7th Cir. 1989).
Petitioner concedes that he has not exhausted these administrative remedies, but
argues that exhaustion should be excused because the “available Administrative Remedy
[process] is wholly inappropriate to the relief sought and would be a patently futile course
of action.” (Dkt. #1, at 3.) However, the court need not resolve whether petitioner may
be excused from the exhaustion requirement because his claim fails on the merits.

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Respondent has provided records showing that petitioner’s PATTERN score has
been “medium” (on May 10 and October 27, 2022, and April 6, July 12, and December
27, 2023) or “high” (on November 2, 2021) since 2021.2 (See dkt. #20, at ¶ 9; #20-4;
and #20-5.)

Contrary to petitioner’s contention that the FSA prohibits the use of

PATTERN scores to deny the application of FTCs, the FSA, 18 U.S.C. § 3632(a), expressly
required the Attorney General to develop a risk and needs assessment system to determine
and periodically reassess the recidivism risk of each prisoner as low, medium, or high.
Pursuant to that mandate, the Department of Justice released the PATTERN assessment
system on July 19, 2019. See Booker v. Williams, No. 21-cv-00215, 2022 WL 4314362, at
*1 (S.D. Ill. Sept. 19, 2022). Moreover, the FSA and its implementing regulations provide
that a prisoner is eligible for application of FTCs for pre-release custody only when the
prisoner has either: (1) a minimum or low PATTERN score in his past two reassessments;
or (2) made a petition to be transferred to pre-release custody that has been approved by
the warden after making certain findings. See 18 U.S.C. § 3624(g)(1)(D)(i); 28 C.F.R. §
523.44; see also Broadnax v. Keyes, No. 22-cv-520-wmc, 2023 WL 8481559, at *2 (W.D.
Wis. Nov. 3, 2023) (finding petitioner’s medium PATTERN score made him “statutorily
ineligible to have FTCs applied to his sentence”). Neither of these events has occurred in
this case. Petitioner’s PATTERN scores have not yet been below medium, and respondent
has produced uncontradicted evidence that petitioner did not petition the warden to apply
his FTCs to pre-release custody or that the warden has approved any such request. (See

Petitioner’s PATTERN score was due to be reassessed around June 2024, but the results of that
assessment are not included in the record.
2

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dkt. #20, at ¶ 12.) Accordingly, petitioner fails to show that FTCs apply to entitle him to
immediate placement in pre-release custody or that the BOP’s calculation is incorrect or
improper. Because he is not entitled to relief under 28 U.S.C. § 2241, his petition must
be denied.
ORDER
IT IS ORDERED that:
1) The petition filed by James King (dkt. #1) is DENIED and this case is
DISMISSED with prejudice.
2) The clerk of court is directed to enter judgment and close this case.
Entered this 22nd day of November, 2024.
BY THE COURT:
/s/
___________________________
WILLIAM M. CONLEY
District Judge

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