United States District Court, E.D. Arkansas, Eastern Division
following Recommended Disposition (âRecommendationâ) has been
sent to United States District D. P. Marshall, Jr. Any 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.
before the Court is a 28 U.S.C. § 2241 Petition for a
Writ of Habeas Corpus filed on April 3, 2019, by Petitioner,
Omar Gilliam (“Gilliam”), who is currently
incarcerated at the Federal Correctional Institution-Low in
Forrest City, Arkansas. Doc. 1.
§ 2241 Petition, Gilliam contends that he is entitled to
more good time credit on his federal sentence based on the
First Step Act of 2018. For way of relief, he requests the
Court to “compel the U.S. Government to apply the
necessary credits to the currently imposed sentence at a rate
of (7) days per year sentenced.” Doc. 1 at 5.
reasons stated below, the Court recommends that Gilliam's
habeas Petition be dismissed, without prejudice.
conducting an initial review of Gilliam's habeas
Petition, the Court may summarily deny relief “if it
plainly appears from the petition and any attached exhibits
that the petitioner is not entitled to relief.” Rule 4
of the Rules Governing § 2254 Cases in the United States
District Courts (applicable to § 2241 petitions under
Rule 1(b)); 28 U.S.C. § 2243.
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). In this case, however,
Gilliam's claim is prematurely asserted because: (1) he
relies on a new statute, the relevant provisions of which
have not yet taken effect; and (2) he has not exhausted his
administrative remedies by allowing the Bureau of Prisons
(“BOP”) the first opportunity to apply the new
law, once it takes effect, and assess whether his sentence
should be adjusted.
The First Step Act of 2018
relies entirely on the First Step Act of 2018, S. 756, 115th
Cong. (2018) as the legal basis for the requested adjustment
to his sentence. However, the 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).
the Court concludes that Gilliam's request for a reduced
sentence, based on provisions of the First Step Act ...