United States District Court, E.D. Kentucky, Central Division, Lexington
JASON C. SHEPPARD, Petitioner,
FRANCISCO QUINTANA, Warden, Respondent.
MEMORANDUM OPINION AND ORDER
C. REEVES UNITED STATES DISTRICT JUDGE.
Jason C. Sheppard is presently confined at the Federal
Medical Center (“FMC”) - Lexington located in
Lexington, Kentucky. Proceeding without an attorney, Sheppard
has filed a petition for a writ of habeas corpus pursuant to
28 U.S.C. § 2241 challenging the calculation of his
sentence. [Record No. 1] The matter is pending for initial
screening as required by 28 U.S.C. § 2243. Alexander
v. Northern Bureau of Prisons, 419 Fed.Appx. 544, 545
(6th Cir. 2011).
is currently serving a total term of imprisonment of 40
months with three years of supervised release for a mail
fraud conviction in violation of 18 U.S.C. §§ 1343
and 1341 and a violation of the conditions of his supervised
release. United States v. Sheppard, No.
1:10-CR-119-CB-1 (W.D. Pa.); United States v.
Sheppard, 2:13-CR-278-CB-1 (W.D. Pa.). He is currently
projected to be released from the custody of the federal
Bureau of Prisons (“BOP”) on September 12, 2019.
See https://www.bop.gov/inmateloc/ (last visited on
March 6, 2019).
argues that, in light provisions of the First Step Act of
2018, the BOP should immediately recalculate his sentence to
allow him to take advantage of amendments affecting the
manner in which good conduct time credits are calculated. The
First Step Act, enacted on December 21, 2018, amended 18
U.S.C. § 3624(b)(1) to change the manner in which
credits are calculated by increasing the maximum allowable
good conduct time from 47 to 54 days per year. Sheppard
states that he needs his time credit adjustment before the
BOP's planned classification process begins in July 2019
or he will not receive the benefit of the amendment. [Record
No. 1 at p. 2] According to Sheppard, the changes made by the
First Step Act would result in a credit to him of 58 days of
good conduct time. Because his projected release date is
currently September 12, 2019, crediting him with that time
effective immediately would result in a projected release
date of approximately July 15, 2019. However, if the
BOP's classification process has not been completed by
that date, he states that he will not receive the benefit of
the First Step Act. [Id.] Sheppard seeks as relief
an order directing the BOP to immediately recalculate his
time in accordance with the amendments of the First Step Act.
also states that he has been denied placement in a
Residential Reentry Center (“RRC”) due to a
“management decision” by his Unit Team.
[Id. at p. 2] Thus, as alternate relief, he requests
that the Court direct the BOP to provide him with RRC
placement time. [Id. at p. 6-8]
petition will be denied. First, he admits that he has not
taken steps to formally exhaust his administrative remedies
available within the BOP. [Id. at p. 3] And before a
prisoner may seek habeas relief under Section 2241, he must
first exhaust his administrative remedies within the BOP.
Luedtke v. Berkebile, 704 F.3d 465, 466 (6th Cir.
2013); Fazzini v. Northeast Ohio Correctional
Center, 473 F.3d 229, 231 (6th Cir. 2006). The
exhaustion requirement ensures that the agency has an
opportunity to review and revise its actions before
litigation is commenced. This preserves judicial resources as
well as administrative autonomy and also ensures that a court
reviewing the agency's final action does so based upon a
developed and complete evidentiary record. Noriega-Lopez
v. Ashcroft, 335 F.3d 874, 881 (9th Cir. 2003);
Moscato v. Fed. Bureau of Prisons, 98 F.3d 757,
761-62 (3d Cir. 1996).
indicates that he has attempted to pursue the administrative
remedy process, but his Unit Team has refused to provide him
with the appropriate Administrate Remedy documents. [Record
No. 1 at p. 3] According to Sheppard, his Unit Team has
explained that the credit will be applied automatically once
the Designation Sentence Computation Center
(“DSCC”) in Grand Prairie, Texas begins
classification and he may not appeal until he receives credit
or it is not applied. Thus, Sheppard concedes that it is
entirely possible that the BOP will award him with the credit
that he seeks, it just may not do so within the time frame
that he desires. Even so, this case underscores one of the
primary purposes of the exhaustion requirement: that is, it
provides prison officials notice of the problem so that they
have the first opportunity to resolve issues without resort
to litigation. Because Sheppard concedes that he did not
pursue, much less exhaust, his administrative remedies prior
to filing his petition, dismissal of his petition is
this were not so, Sheppard's claim would be dismissed as
without merit. Sheppard is correct that Section 102(b)(1) of
the First Step Act of 2018, Public Law 115-391, amended 18
U.S.C. § 3624(b) to permit federal inmates to earn 54
days of good conduct time for each year of the sentence
imposed, effectively abrogating Barber v. Thomas,
560 U.S. 474 (2010). But, as Sheppard concedes, this
provision has not yet taken effect. Section 102(b)(2) of the
Act provides that the amendments made in subsection 102(b)
take effect only when the Attorney General completes the
“risk and needs assessment system” required by
Section 101(a). And Section 101(a) does not require
completion of the system until 210 days after the Act's
enactment. Thus, Section 102(b)(1) will not take effect until
approximately July 2019. Although Sheppard may be frustrated
with this process in light of his projected release date, the
classification system that Sheppard describes as being
implemented by the BOP is in compliance with statutory
Sheppard is not entitled to immediate placement in an RRC.
The First Step Act does not mandate that the BOP place
prisoners in a halfway house or an RRC for any period of
time. Under the current version of 18 U.S.C. § 3624(c),
as amended by the Second Chance Act of 2007, the BOP is
authorized to consider placing an inmate in a
community correctional facility for up to twelve months.
However, a prisoner is not automatically entitled or
guaranteed such placement for any minimum period. 18 U.S.C.
§ 3624(c). See also Heard v. Quintana, 184
F.Supp.3d 515, 520 (E.D. Ky. 2016). See also Demis v.
Sniezek, 558 F.3d 508, 514 (6th Cir. 2009); Boals v.
Quintana, No. 5:15-cv-335-JMH, 2015 WL 8665404, at *2
(E.D. Ky. Dec. 11, 2015). Instead, “the decision to
place an inmate in pre-release community confinement and/or
home confinement is discretionary and will be
‘determined on an individual basis' according to
the factors in 18 U.S.C. § 3621(b).”
Boals, 2015 WL 8665404 at *2 (citing McIntosh v.
Hickey, No. 10-cv-126-JMH, 2010 WL 1959308, at *3 (E.D.
Ky. May 17, 2010)). The First Step Act does not alter this
also noteworthy that the BOP's placement decisions,
including determinations regarding halfway house and home
confinement placement, are expressly insulated from judicial
review, as the provisions of the Administrative Procedures
Act (“APA”) do not apply to such decisions. 28
U.S.C. § 3625 (“The provisions of sections 554 and
555 and 701 through 706 of title 5, United States Code, do
not apply to the making of any determination, decision, or
order under this subchapter.”). Cf. Woodard v.
Quintana, No. 5:15-cv-307-KKC, 2015 WL 7185478, at *5-6
(E.D. Ky. Nov. 13, 2015).
of these reasons, Sheppard fails to establish a right to
habeas relief. Accordingly, it is hereby
ORDERED as follows:
Petitioner Jeffery Sheppard's petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2241 [Record No.
1] is DENIED.
action is DISMISSED with prejudice and