United States District Court, E.D. Kentucky, Central Division, Lexington
MEMORANDUM OPINION AND ORDER
M. HOOD, SENIOR U.S. DISTRICT JUDGE
matter is before the Court upon Defendant Mark Noel
Powell's (“Powell”) “Motion for Earned
Good Time Credit Pursuant to the First Step Act.” [DE
45]. Powell specifically requests this Court enter an order
“allow[ing] h[im] to have ... credit applied to [his]
sentence at this time.” [Id.]. For the reasons
set forth below, Defendant Powell's Motion is hereby
September 8, 2011, Powell pleaded guilty to two counts of
manufacturing methamphetamine in violation of 21 U.S.C.
§ 841(a)(1). [DE 24]. As a result, this Court sentenced
Powell to eighty-four months on each count to run concurrent
to one another as well as three years supervised released.
[DE 24]. On June 1, 2018, upon finding that Powell violated
two conditions of his supervised release, this Court entered
a judgment revoking Powell's supervised release. [DE 39].
Powell was then committed to the custody of the Bureau of
Prisons (“BOP”) to be imprisoned for a total term
of twenty-four months. [Id.]. Powell is currently
projected for release from Gilmer FCI on January 20, 2020.
See https://www.bop.gov/inmateloc/ (last visited on
April 4, 2019). Powell asserts that he is scheduled for
release to enter a “half way house” in September
of 2019. [DE 45].
to the First Step Act of 2018, Powell requests the Court
credit him with “good time earned which equals 7 extra
days for each year served of your sentence coming to a total
of 42 days give or take a few.” [DE 45]. Powell also
notes that the First Step Act is “retroactive.”
[Id.]. As a result, Powell requests the Court that
such credit be “applied to [his] sentence at this
First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194
(“the Act”) was signed into law on December 21,
2018. The Act implements certain reforms to the criminal
justice system. For instance, the Act amended 18 U.S.C.
§ 3624(b)(1) to change the manner in which such credits
are calculated by increasing the maximum allowable good
conduct time from 47 to 54 days per year. According to
Powell, the changes made by the First Step Act would result
in credit to him of forty-two days of good conduct time per
year. [DE 45]. As such, he requests this Court calculate and
credit him good time earned accordingly. [Id.].
motion must be denied. A post-conviction motion attacking
either the execution of a sentence or confinement that is not
the result of a trial court's judgment must be brought in
a petition pursuant to 28 U.S.C. § 2241 in the district
where the defendant is incarcerated or in a regional BOP
office. See 28 U.S.C. §§ 2241, 2255. Thus,
even if Powell had alleged that the BOP failed to accurately
calculate or credit him for good time served - which he did
not - this Court would have no choice but to construe such a
motion as an attack on the execution of his sentence by the
BOP, not a challenge to the sentence itself. Powell may only
seek such relief through a § 2241 habeas petition, and
he may only file such petition in the federal court located
in the district in which he is incarcerated, or where a
regional BOP office is located. As such, this Court therefore
lacks jurisdiction to provide the requested relief.
Powell's motion requests this Court to calculate and
award him credit for good time served. [DE 45]. However, that
authority rests with the BOP. When sentencing criminal
defendants, federal district courts do not determine the
appropriate credit for time spent in official detention.
United States v. Wilson, 503 U.S. 329, 333 (1992).
Instead, this responsibility lies with the Attorney General,
who has delegated the authority to the BOP. See 28
C.F.R. § 0.96 (“The Director of the Bureau of
Prisons is authorized to exercise or perform the authority,
functions, or duties conferred or imposed upon the Attorney
General by any law relating to the commitment, control, or
treatment of persons ... charged with or convicted of
offenses against the United States....”). The express
language of 18 U.S.C. § 3624, makes clear that it is the
BOP, not the district court, that determines whether a
federal prisoner should receive good time credit. See
Gonzalez v. United States, 959 F.2d 211, 212 (11th Cir.
1992) (“Courts have original jurisdiction over
imposition of a sentence. The Bureau of Prisons is, however,
responsible for computing that sentence and applying
appropriate good time credit.”). As a result, this
Court cannot grant the relief Powell seeks.
if a prisoner feels the BOP has unfairly denied credit toward
the sentence imposed, the prisoner may pursue administrative
review of the computation of the credit. See Wilson,
503 U.S. at 335, 112 S.Ct. 1351 (citing 28 C.F.R.
§§ 542.10-542.16). Even if Powell had such a
grievance and had properly filed a habeas petition in a
district court with proper jurisdiction, he utterly failed to
allege, let alone establish, that he exhausted his
administrative remedies available within the BOP prior to
such filing. [DE 45]. 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 purpose of the exhaustion
requirement is to ensure that the agency has an opportunity
to review and revise its actions before litigation is
commenced, which preserves both judicial resources and
administrative autonomy, and also to ensure that a court
reviewing the agency's final action does so 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). Without a full administrative record
explaining the BOP's action or inaction and the reasons
for that action or inaction, any reviewing Court lacks an
adequate evidentiary basis upon which to review such
complaints. See Woodford v. Ngo, 548 U.S. 81, 89
(2006). As noted above, Powel did not file a § 2241
petition, nor does he assert he filed any grievance,
complaint, or appeal with the BOP. On this record, the Court
cannot find Powell pursued, much less exhausted, his
administrative remedies prior to filing this motion. [DE 45].
As such, his motion must be denied.
Powell's motion must be denied because it is without any
substantive merit. 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). As discussed
above, the First Step Act increased the maximum allowable
good time from 47 to 54 days. However, this provision has not
yet taken effect: Section 102(b)(2) of the Act provides that
the amendments made in subsection 102(b) of the Act take
effect only when the Attorney General completes the
“risk and needs assessment system” required by
Section 101(a) of the Act. 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. Moreover, Powell only suggests that
that he will be entitled to forty-two days of credit, which
is within the current 47 day maximum. As such, Powell's
motion is without merit.
IT IS ORDERED that Defendant's
“Motion for Earned Good Time Credit Pursuant to the
First Step Act” [DE 45] is DENIED.