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Gilliam v. United States Justice Department

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

April 19, 2019

OMAR GILLIAM PETITIONER
v.
UNITED STATES JUSTICE DEPARTMENT; DEWAYNE HENDRIX, Warden, FCI - Forrest City; RESPONDENTS

          RECOMMENDED DISPOSITION

         The following Recommended Disposition (“Recommendation”) 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.

         I. Introduction

         Pending 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.[1]

         In his § 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.

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

         II. Discussion

         In 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.

         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). 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.

         A. The First Step Act of 2018

         Gilliam 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).

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


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