United States District Court, E.D. North Carolina, Western Division
W. FLANAGAN, UNITED STATES DISTRICT JUDGE.
a federal inmate proceeding pro se, filed the instant
petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2241. The matter is before the court for an initial
review of the petition pursuant to 28 U.S.C. § 2243,
which provides that the court need not seek a response from
the respondent when it is clear on the face of the petition
that the petitioner is not entitled to relief.
is currently incarcerated at the Federal Correctional
Institution in Butner, North Carolina, serving a term of 36
months' imprisonment for violating the terms of
supervised release. The petition alleges the following
grounds for relief: 1) the Federal Bureau of Prisons
(“BOP”) has miscalculated her good time credits
in violation of the First Step Act of 2018; 2) the First Step
Act requires the BOP to place petitioner in home confinement
for the last six months of her sentence; 3) the sentencing
court failed to reduce her sentence pursuant to Amendment 782
to the United States Sentencing Guidelines; 4)
petitioner's supervised release revocation proceedings
violated her rights under the Due Process Clause of the
Fourteenth Amendment to the United States Constitution; and
5) the predicate convictions used to enhance her sentence
to § 2241, a federal court may issue a writ of habeas
corpus to a federal or state prisoner if the prisoner
“is in custody in violation of the Constitution or laws
or treaties of the United States.” 28 U.S.C. §
2241(a), (c)(3). “[A]ttacks on the execution of a
[federal] sentence are properly raised in a § 2241
petition.” In re Vial, 115 F.3d 1192, 1194 n.5
(4th Cir. 1997) (en banc). A federal prisoner challenges the
execution of her sentence when she contests the BOP's
“administrative rules, decisions, and procedures
applied to [the] sentence.” In re Wright, 826
F.3d 774, 777 (4th Cir. 2016).
court beings with plaintiff's claims concerning
calculation of her good time credits under the First Step
Act. Section 102(b) of the First Step amended 18 U.S.C.
§ 3624(b) to provide that federal inmates are eligible
to receive up to 54 days of good conduct time for each year
of incarceration. See First Step Act of 2018, Pub.
L. No. 115-391, § 102(b), 132 Stat. 5194, 5210. However,
“the amendments made [to § 3624] by this
subsection shall take effect beginning on the date that the
Attorney General completes and releases the risk and needs
assessment system [as required by § 101(a) of the First
Step Act). See id. at 5213. At the time petitioner
filed the petition, the Attorney General had not completed
the risk and needs assessment, and thus the First Step
Act's amendments to § 3624 were not effective.
United States v. Lowe, No. 1:15-CR-11-1, 2019 WL
3858603, at *3 (M.D. N.C. Aug. 16, 2019) (stating the risk
and needs assessment was completed on July 19, 2019).
Accordingly, the petition was prematurely filed, and
petitioner was not being held in violation of the First Step
Act's amendments to § 3624(b) when she filed the
petition. See First Step Act of 2018, § 102(b),
132 Stat. at 5213; see also Martin v. Entzel, No.
3:19-CV-25, 2019 WL 2946074, at *3 (N.D. W.Va. June 7, 2019)
(dismissing habeas claim challenging the BOP's
calculation of good time credits where the claim was filed
before the effective date of § 102(b)'s amendments);
White v. BOP, No. 9:19-762-JMC-BM, 2019 WL 2517082,
at *2-3 (D.S.C. May 17, 2019) (same); Blake v. BOP,
No. 2:19-CV-818-RMG-MGB, 2019 WL 2618194, at *2 (D.S.C. Apr.
23, 2019) (same). Petitioner also has not alleged in
subsequent filings that the BOP miscalculated her good time
credits after the effective date of the amendments to §
court next considers petitioner's claim that the First
Step Act requires the BOP to place her in home confinement
for the last six months of her sentence. The First Step Act
amended 18 U.S.C. § 3624(c)(2) to provide:
Home confinement authority. - The authority under this
subsection may be used to place a prisoner in home
confinement for the shorter of 10 percent of the term of
imprisonment of that prisoner or 6 months. The Bureau of
Prisons shall, to the extent practicable, place prisoners
with lower risk levels and lower needs on home confinement
for the maximum amount of time permitted under this
18 U.S.C. § 3624(c)(2); First Step Act of 2018, §
602, 132 Stat. at 5238. This provision states that the BOP
shall place certain prisoners on home confinement “to
the extent practicable” for the maximum time allotted.
Thus, contrary to petitioner's claim, the First Step Act
does not “require” the BOP to place her on home
also raises claims challenging her conviction and sentence
for violating the terms of her supervised release, including
that her revocation proceedings violated her due process
rights, and that her sentence was improperly enhanced.
Although petitioner filed her claims under 28 U.S.C. §
2241, she is in fact attacking the legality, rather than the
execution of, her conviction and sentence. The legality of
petitioner's conviction and sentence must be challenged
under 28 U.S.C. § 2255 unless “the remedy by
motion [under § 2255] is inadequate or ineffective to
test the legality of [the petitioner's] detention.”
28 U.S.C. § 2255; see In re Vial, 115 F.3d
1192, 1194 (4th Cir. 1997) (en banc). Section 2255 is
inadequate and ineffective to test the legality of a
(1) at the time of conviction, settled law of this circuit or
the Supreme Court established the legality of the conviction;
(2) subsequent to the prisoner's direct appeal and first
§ 2255 motion, the substantive law changed such that the
conduct of which the prisoner was convicted is deemed not to
be criminal; and (3) the prisoner cannot satisfy the
gatekeeping provisions of § 2255 because the new rule is
not one of constitutional law.
In re Jones, 226 F.3d 328, 333-34 (4th Cir. 2000).
§ 2255 is inadequate and ineffective to test the
legality of a sentence where:
(1) at the time of sentencing, settled law of this circuit or
the Supreme Court established the legality of the sentence;
(2) subsequent to the prisoner's direct appeal and first
§ 2255 motion, the aforementioned settled substantive
law changed and was deemed to apply retroactively on
collateral review; (3) the prisoner is unable to meet the
gatekeeping provisions of § 2255(h)(2) for second or
successive motions; and (4) due to this ...