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McCallister v. Hendrix

United States District Court, E.D. Arkansas, Eastern Division

April 19, 2019

JUSTICE McCALLISTER PETITIONER
v.
DEWAYNE HENDRIX, Warden, FCI - Forrest City; UNITED STATES BUREAU OF PRISONS RESPONDENTS

          RECOMMENDED DISPOSITION

         The following Recommended Disposition (“Recommendation”) has been sent to United States District D. P. Marshall, Jr. Either party may file written objections to all or part of this Recommendation. If you do so, those objections must: (1) specifically explain the factual and/or legal basis for your objection; and (2) be received by the Clerk of this Court within fourteen (14) days of the entry of this Recommendation. The failure to timely file objections may result in waiver of the right to appeal questions of fact.

         I. Introduction

         Petitioner Justice McCallister (“McCallister”) is incarcerated at the Federal Correctional Institution-Low in Forrest City, Arkansas, where he is serving a 108-month sentence for bank robbery and possessing a firearm during the crime.[1]

         On February 25, 2019, McCallister filed a pro se Petition for Writ Habeas Corpus, with supporting brief, pursuant to 28 U.S.C. § 2241. Docs. 1-2. McCallister contends the Bureau of Prisons (“BOP”) refuses to properly compute his release date as required by the recently enacted First Step Act of 2018. According to McCallister, the BOP's computed release date of June 11, 2019[2] denies him 63 days of earned good conduct credit and deprives him of an earlier release date of April 9, 2019. Doc. 2 at 3-4; Doc. 8.

         In its Response, Warden Dewayne Hendrix argues McCallister's Petition is premature and should be dismissed. Doc. 6. On April 9, 2019, McCallister filed a Motion to Rule in Default and Award Prison Credit Days. Doc. 8.

         For the reasons stated below, the Court recommends that McCallister's habeas Petition be dismissed, without prejudice.

         II. Discussion

         A federal prisoner may bring a habeas claim under § 2241 to challenge the execution of his sentence in the district where he is incarcerated. Metheny v. Morrison, 307 F.3d 709 (8th Cir. 2002) (§ 2241 habeas petition is the proper vehicle for a prisoner's request for good time credits to reduce length of imprisonment and must be brought in the district of incarceration). However, McCallister's claim is prematurely asserted because: (1) he relies on a new law that is not yet in effect; and (2) he has not exhausted his administrative remedies, which he must do in order to allow the BOP an opportunity to adjust his sentence.

         A. The First Step Act of 2018

         McCallister relies entirely on the First Step Act of 2018, S. 756, 115th Cong. (2018) to justify the requested adjustment to his federal sentence. Despite McCallister's assertion that the BOP has acted to delay implementing the new law, the relevant provisions of the new law, involving good conduct time, are not yet in effect. As another district court recently explained:

Petitioner is correct that Section 102(b)(1) of the First Step Act of 2018 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. However, this provision has not yet taken effect.
In accordance with Section 102(b)(2) of the Act, the amendments made in this section only take effect 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. Consequently, Petitioner's claim that the BOP must immediately recalculate his sentence pursuant to the First Step Act lacks merit.

Rizzolo v. Puentes, No. 1:19-cv-00290-SKO (HC), 20019 WL 1229772 (E.D. Cal. March 15, 2019).

         Thus, the Court concludes that McCallister's request for a reduced sentence, based on provisions of the First Step Act ...


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