United States District Court, E.D. Kentucky, Central Division, Lexington
MEMORANDUM OPINION AND ORDER
C. Reeves United States District Judge.
Dana Tate is confined at the Federal Medical Center in
Lexington, Kentucky. Proceeding without an attorney, Tate has
filed a petition for a writ of habeas corpus pursuant to 28
U.S.C. § 2241 in which he challenges the calculation of
his sentence. [Record No. 1] The matter is before the Court
on initial screening pursuant to 28 U.S.C. § 2243.
See Alexander v. Northern Bureau of Prisons, 419
Fed.Appx. 544, 545 (6th Cir. 2011).
2007, Tate pled guilty to being a felon in possession of a
firearm, in violation of 18 U.S.C. § 922(g). The trial
court sentenced him to 180 months in prison. United
States v. Dana Tate, No. 2:06-CR-321 at Record Nos. 11,
21 (E.D. Wis. 2007). Tate is currently projected to be
released from the custody of the Federal Bureau of Prisons
(“BOP”) on December 22, 2019. See BOP
Inmate Locator, https://www.bop.gov/inmateloc/ (last visited
on March 12, 2019).
argues in his § 2241 petition that, in light 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 which was 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. According to Tate, the changes made by the
First Step Act would result in a credit to him of 146 days of
good conduct time. [Record No. 1 at 5] He seeks an order
directing the BOP to immediately recalculate his time in
accordance with the amendments of the First Step Act.
Court will deny Tate's petition for two reasons. First,
Tate indicates that he has not taken steps to formally
exhaust his administrative remedies within the BOP.
[Id. at 2-3] While Tate claims that such exhaustion
“is not necessary” and suggests he “do[es]
not have enough time” to exhaust administrative
remedies, the United States Court of Appeals for the Sixth
Circuit has repeatedly held that a prisoner must fully
exhaust his remedies within the BOP before he may seek habeas
relief under § 2241. See, e.g., Luedtke v.
Berkebile, 704 F.3d 465, 466 (6th Cir. 2013);
Fazzini v. Northeast Ohio Correctional Center, 473
F.3d 229, 231-33 (6th Cir. 2006). This requirement ensures
that the agency has an opportunity to review and revise its
actions before litigation is commenced. And 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. See 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). In this
case, the BOP may ultimately award Tate the credit he seeks.
Nevertheless, he must first provide prison officials notice
of the issue so that they have the opportunity to resolve the
matter and potentially avoid litigation.
even if Tate had exhausted his administrative remedies, the
Court would deny the relief sought. Tate 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). However, as Tate 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.
Tate may be frustrated with this process, this Court applies
the law as it is written. As another federal court recently
stated, “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 statute in
order to accommodate Petitioner's situation.”
Shah v. Hartman, No. 1:18-cv-7990 at Record No. 12
at 4 (N.D. Ill. Jan. 3, 2019).
reasons outlined above, Tate has failed to establish a right
to habeas relief. Accordingly, it is hereby
ORDERED as follows:
Petitioner Dana Tate's petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2241 [Record No. 1] is
action is DISMISSED and