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Gore v. Warden, FCI Williamsburg

United States District Court, D. South Carolina

April 3, 2019

Haywood Gore, #21417-032, Petitioner,
v.
Warden, FCI Williamsburg, Respondent.

          REPORT AND RECOMMENDATION

          THOMAS E. ROGERS, III, UNITED STATES MAGISTRATE JUDGE

         Petitioner, proceeding pro se, brings this action pursuant to 28 U.S.C. § 2241 for habeas relief. Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B), and Local Rule 73.02(B)(2)(c), D.S.C., the undersigned is authorized to review such petitions for relief and submit findings and recommendations to the District Court. Petitioner is an inmate at a federal institution serving time on a federal sentence. The Petition is subject to summary dismissal because it does not present a live case or controversy under Article III of the U.S. Constitution.

         DISCUSSION

         Under established local procedure in this judicial district, a careful review has been made of the pro se pleadings and motion to proceed in forma pauperis pursuant to the procedural provisions of 28 U.S.C. § 1915 and the Anti-Terrorism and Effective Death Penalty Act of 1996. The review has been conducted in light of the following precedents: Denton v. Hernandez, 504 U.S. 25 (1992); Neitzke v. Williams, 490 U.S. 319, 324-25 (1989); Haines v. Kerner, 404 U.S. 519 (1972); Nasim v. Warden, Maryland House of Correction, 64 F.3d 951 (4th Cir. 1995)(en banc); Todd v. Baskerville, 712 F.2d 70 (4th Cir. 1983); Loe v. Armistead, 582 F.2d 1291 (4th Cir. 1978); and Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). The Petitioner is a pro se litigant, and thus his pleadings are accorded liberal construction. Erickson v. Pardus, 551 U.S. 89, 94 (2007)(per curiam); Cruz v. Beto, 405 U.S. 319 (1972). Even under this less stringent standard, the petition is subject to summary dismissal. The requirement of liberal construction does not mean that the court can ignore a clear failure in the pleading to allege facts which set forth a claim currently cognizable in a federal district court. Weller v. Department of Social Services, 901 F.2d 387, 390-91 (4th Cir. 1990).

         Furthermore, this court is charged with screening Petitioner's lawsuit to determine if “it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court.” Rule 4 of Rules Governing Section 2254 Cases in the United States District Courts.[1]

         Petitioner has filed a Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241, contesting the “delayed implementation of the good time fix [of the] First Step Act.” (ECF No. 7 at 2). The Bureau of Prisons had calculated the good conduct time earned based on actual time served in prison, not the length of the imposed prison sentence. Barber v. Thomas, 560 U.S. 474, 476-79 (2010). On December 21, 2018, 18 U.S.C. § 3624 (b)(1) was amended. However, the amendment changes of that particular subsection are not yet effective. The statute notes provide:

         AMENDMENT OF SUBSEC. (B)(1)

<Pub.L. 115-391, Title I, § 102(b)(1)(A), (2), Dec. 21, 2018, 132 Stat. 5210, 5213, provided that, effective beginning on the date that the Attorney General completes and releases the risk and needs assessment system under subchapter D of chapter 229 of Title 18, subsec. (b)(1) is amended by striking “, 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, ” and inserting “of up to 54 days for each year of the prisoner's sentence imposed by the court, ”; and by striking “credit for the last year or portion of a year of the term of imprisonment shall be prorated and credited within the last six weeks of the sentence” and inserting “credit 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”.>

28 U.S.C. § 3624(b)(1)(emphasis added).

         Article III of the Constitution only gives the judiciary the power to adjudicate “Cases” and “Controversies.” Already, LLC v. Nike, Inc., 568 U.S. 85, 90-91 (2013). “In our system of government, courts have “no business” deciding legal disputes or expounding on law in the absence of such a case or controversy.” Id. (citing Daimler Chrysler Corp. v. Cuno, 547 U.S. 332, 341 (2006)). Because the entitlement of the new method of calculation of 54 days of good time credit found in § 3624 has not yet accrued because the statute's amendment is not yet effective because the Attorney General, as of this writing, has not yet completed and released the risk and needs assessment system, there is no live Article III case and controversy here.

         The public law's (cited in the amendment section language of the statute) section 102(b)(2) is clear that it covers section 102(b)(1)(A)'s implementation as it applies to the implementation of all of section 102(b). The risk and needs assessment system does involve sentence calculation to the extent that the system must “determine when a prisoner is ready to transfer into pre-release custody or supervised release in accordance with § 3624.” First Step Act of 2018, Pub. L. No. 115-015, 132 Stat. 015 § 101(a) (2018). The court is obligated to apply the law as it is written. Congress chose to delay the implementation of the First Step Act's amendments until the Attorney General could complete the risk and needs assessment. The Court has no power to rewrite or disregard the express language of the statute.

         Thus, the Petition is subject to summary dismissal due to the lack of a live, active case or controversy.

         RECOMMENDATION

         Accordingly, it is recommended that the Petition in this case be dismissed without prejudice and without ...


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