PEREVOZNIKOV v. STOVER FCI (2024)

RULING ON PETITION FOR HABEAS CORPUS UNDER 28 U.S.C. § 2241

Petitioner Anton Perevoznikov is a sentenced inmate at the Federal Correctional Institution in Danbury, Connecticut (“FCI Danbury”). He filed this pro se petition (“Petition”), ECF No. 1, for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 to challenge the calculation by the Federal Bureau of Prisons (BOP) as to his remaining prison term and related credits. Respondent filed a response in compliance with this court's order to show case, ECF No. 9, to which Petitioner replied, ECF No. 11, Respondent filed a sur-reply, ECF No. 12, and Petitioner filed a sur-sur-reply, ECF No. 14.¹ Per the court's order, both parties also have filed supplemental briefs addressing whether the case of Huihui v. Derr, 2023 WL 4086073, at *5 (D. Haw. June 20, 2023), is relevant here. See ECF Nos. 15, 16, and 17. Finally, Petitioner also has filed notice of supplemental authority. ECF No. 20. The court has reviewed the entire record and concludes that the petition must be GRANTED in part and DENIED in part.

I. BACKGROUND

On August 31, 2021, in the United States District Court for the Eastern District of Pennsylvania, Petitioner received a sentence of 48 months’ imprisonment on federal criminal charges. ECF No. 9-2 ¶ 4. At the time, he already was in the custody of the United States Marshals Service (“USMS”). After his sentencing in that district, Petitioner remained in USMS custody and was transferred to the Eastern District of New York, where there were additional federal criminal charges pending against him. Id. ¶¶ 5, 9. There, on September 21, 2022, Petitioner was sentenced to an 18-month term of imprisonment,² consecutive to the sentence imposed in the Eastern District of Pennsylvania. BOP aggregated Petitioner's sentences under 18 U.S.C. § 3584(c), and Petitioner is now serving a 66-month term of imprisonment.³ Id. ¶ 5-6.

Although Petitioner was housed in BOP facilities throughout his time in both districts, officially he remained in the custody of USMS until January 11, 2023, when he entered BOP custody at FCI Danbury, the institution to which the BOP designated him for the service of his prison sentence. ECF No. 9-2 ¶¶ 8, 9, 20. However, he was participating in BOP programming while in USMS custody. See ECF No. 1-1 at 14–37.

II. LEGAL STANDARD

A federal prisoner may petition the courts for habeas relief if he is “in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241(c)(3). “A writ of habeas corpus under § 2241 is available to a federal prisoner who does not challenge the legality of his sentence, but challenges instead its execution subsequent to his conviction.” Carmona v. U.S. Bureau of Prisons, 243 F.3d 629, 632 (2d Cir. 2001). Thus, § 2241 petitions may challenge sentence calculations. See Levine v. Apker, 455 F.3d 71, 78 (2d Cir. 2006) (stating that challenges to the execution of a sentence, including computation of a sentence, may be brought under § 2241).

III. DISCUSSION

The First Step Act (“FSA”) required the BOP to create a system of assessing at intake the risk and needs of every inmate, toward reducing recidivism. 18 U.S.C. § 3632. Based upon that assessment, BOP assigns each inmate certain evidence-based recidivism reduction programs (“EBRRs”) and other productive activities (“PAs”), and participation in EBRRs and PAs is rewarded with, inter alia, time off of their prison terms. Id. § 3632(d)(4)(C); see also 28 C.F.R. § 523.40(b). A prisoner will accrue 10 days of earned time credits (“ETCs”) for every 30 days of “successful participation” in EBRRs and PAs. Follow-up assessments are performed regularly to measure an inmate's progress, and a prisoner who maintains a “low” risk assessment over two consecutive assessments can earn an additional 5 days of ETCs for every 30 days of such “successful participation.” Id. § 3632(d)(4)(A).

But ETCs can be lost, too, so an inmate's ETCs may be applied only when they have been accrued “in an amount that is equal to the remainder of the prisoner's imposed term of imprisonment.” See 18 U.S.C. § 3624(g)(1)(A). “In other words, the inmate is not ‘eligible’ for application of his FSA time credits until the number of credits equals the number of days remaining in his sentence.” Pujols v. Stover, No. 3:23-CV-564 (SVN), 2023 WL 4551423, at *1 (D. Conn. July 14, 2023).

Petitioner had a risk assessment on January 17, 2023, and was found to be a low risk of recidivism. ECF No. 9-2 ¶ 22. He had a second assessment on June 29, 2023, at which time he again was found to be at low risk of recidivism. Id. ¶ 23. The BOP represents that he earned 60 days of ETCs for the time between January 11, 2023, and August 7, 2023, and fifteen days of ETCs from August 7, 2023, to September 5, 2023. Thus, as of November 20, 2023, the BOP calculated that Petitioner had earned a total of 90 days of FSA time credits. See ECF No. 12-1. The BOP also calculated Petitioner's projected release date (assuming good time credit under 18 U.S.C. § 3624(b)) as June 17, 2025. ECF No. 9-2 ¶ 28. Petitioner disagrees with BOP, though, asserting that the programming he completed while in USMS custody prior to January 11, 2023, entitles him to additional ETCs such that he would be eligible for immediate release from prison.

Relying upon BOP regulations implementing the FSA, Respondent maintains that the BOP's calculation is correct because (1) an inmate does not become eligible to earn ETCs until they arrive at the facility the BOP designates for their incarceration, see 28 C.F.R. 523.42(a); and (2) an inmate can only earn ETCs for participation in EBRRs and PAs assigned by the BOP, which cannot be done prior to completion of a risk and needs assessment, see 28 C.F.R. §§ 523.41(c)(1)–(2) (providing that an inmate must be “successfully participating” in the programs recommended by BOP staff in order to earn ETCs); 28 C.F.R. 523.42(b)(3) (stating that an eligible inmate may earn ETCs for successfully participating in programming the BOP has recommended based on the inmate's risk and needs assessment). Moreover, under these regulations, an otherwise eligible inmate “will generally not be considered to be successfully participating’ ” in EBRRs or PAs when the inmate temporarily is transferred to the custody of another federal agency. 28 C.F.R. § 523.41(c)(4)(iii). Respondent argues that Petitioner did not arrive at FCI Danbury until January 11, 2023, was not in BOP custody until the same, had not been assessed by the BOP until a few weeks thereafter, and thus had not been assigned any EBRRs and PAs, so Petitioner could not accrue any ETCs while in USMS custody, despite the programming he participated in and completed.

Until recently, courts deferred to an agency's reasonable interpretation of an ambiguous statute when Congress has “charged [the agency] with responsibility for administering the provision ․” Chevron USA, Inc. v. Nat'l Res. Def. Council, Inc., 467 U.S. 837, 865, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). However, Supreme Court of the United States recently has overturned Chevron. Loper Bright Enterprises v. Raimondo, 603 U.S. 369, 144 S. Ct. 2244, 2273, 219 L.Ed.2d 832 (2024) (“Chevron is overruled.”). Now, “[c]ourts must exercise their independent judgment in deciding whether an agency has acted within its statutory authority ․” Id. Thus, Respondent's reliance upon federal regulations cannot carry its argument.

Petitioner argues that the FSA is not ambiguous to begin with, and that the BOP's regulations clearly contradict that statute. More specifically, Petitioner notes that the FSA contains only two restrictions upon the earning of ETCs: no ETCs may be earned for any EBRRs or PAs that an inmate completed before the FSA was enacted, and no ETCs may be earned for any EBRRs or PAs completed before the inmate's sentence commences within the meaning of 18 U.S.C. § 3585(a). 18 U.S.C. § 3632(d)(B). Section 3585(a), in turn, states that a sentence commences “on the date the defendant is received in custody awaiting transportation to ․ the official detention facility at which the sentence is to be served.” Thus, Petitioner concludes that he was eligible to earn ETCs on August 31, 2021 (immediately upon imposition of his sentence at the Eastern District of Pennsylvania), even while in USMS custody with another unresolved case at the Eastern District of New York, and even before he had reached the facility to which he ultimately would be designated.

Petitioner raises an entirely reasonable argument that he should be entitled to credit for programs completed between imposition of his sentence on August 31, 2021, and his ultimate arrival at his designated facility on January 11, 2023, particularly in that he remained in custody between those two dates, with no control over the timing of either his designation or his risk assessment weeks thereafter. To otherwise read § 3585(a) might seem to assign outsized significance to Petitioner's arrival at his designated facility some sixteen months after the imposition of his sentence under such circumstances. However, the plain language of § 3585(a) states, “A sentence to a term of imprisonment commences on the date the defendant is received in custody awaiting transportation to, or arrives voluntarily to commence service of sentence at, the official detention facility at which the sentence is to be served.” Thus, commencement of the sentence appears to follow BOP's designation determination, before which the prisoner would not yet be “awaiting transportation” to any other facility. Whereas the legislature expressly authorized jail credit for pre-sentencing detention due to the same offense(s) for which sentence ultimately is imposed, see 18 U.S.C. § 3585(b) (holding, “A defendant shall be given credit toward the service of a term of imprisonment for any time he has spent in official detention prior to the date the sentence commences”), it opted against using similar language in defining when a sentence commences (which it defined as beginning upon arrival at the facility where the prisoner has been designated to serve their sentence, or upon detention while awaiting transportation thereto).

Admittedly, commencement of the sentence can be significantly delayed when a judge orders the defendant's detention immediately upon the imposition of sentence (and thus before BOP's designation determination), or when a defendant is in custody with multiple pending cases and is sentenced on one of them while another remains pending. Still, this reading of the statute's plain language is consistent with the holdings of several United States Courts of Appeals. See, e.g., United States v. Wells, 473 F.3d 640, 645 (6th Cir. 2007) (“Because the Bureau of Prisons is usually the governmental entity that can confirm that a defendant has been taken into ‘custody awaiting transportation to’ a federal detention facility, courts have stated that ‘after a defendant is sentenced, it falls to BOP, not the district judge, to determine when a sentence is deemed to “commence.” ’ ”) (quoting United States v. Pineyro, 112 F.3d 43, 45 (2d Cir. 1997)); United States v. Tillisy, No. 22-30144, 2024 WL 1926510, at *2 (9th Cir. May 2, 2024) (finding that an inmate “was not ‘received in custody awaiting transportation to ․ the official detention facility at which the sentence is to be served” under § 3585(a) because the Attorney General, through the BOP, had not designated an official detention facility.’ ”); Richards v. Barnhart, No. 21-1176, 2021 WL 6071626, at *2 (10th Cir. Dec. 21, 2021), (determining that an individual who was already in federal custody on a criminal sentence imposed by the District of Columbia when he received another sentence of imprisonment imposed by a federal court had not started his federal sentence until his D.C. sentence had expired.).

Indeed, several courts ruled that this practice by the BOP could not be upheld, even when judicial deference was appropriate under Chevron. See, e.g. Yufenyuy v. Warden, FCI Berlin, 659 F. Supp. 3d 213, 218 (D.N.H. 2023) (“The Court's Chevron inquiry starts, and ends, at step one in this case because the plain language of the FSA, and of § 3585(a), clearly establishes the date upon which the FSA must allow prisoners to start earning FSA time credits․ The Court, therefore, must give effect to the statutory text.”); Jobin v. Warden, FCI-Mendota, No. 1:23-CV-01700-WBS-SKO (HC), 2024 WL 1367902, at *4 (E.D. Cal. Apr. 1, 2024), report and recommendation adopted, No. 1:23-CV-01700-WBS-SKO (HC), 2024 WL 2786898 (E.D. Cal. May 30, 2024) (“Because Section 523.42(a) sets a timeline that conflicts with an unambiguous statute, it is not entitled to Chevron deference and the Court must give effect to the statutory text.”); Huihui, 2023 WL 4086073, at *4 (declining to grant Chevron deference to the BOP's practice of awarding ETCs only after an inmate's arrival at their designated facility); Patel v. Barron, No. C23-937-KKE, 2023 WL 6311281, at *5 (W.D. Wash. Sept. 28, 2023) (concluding that the BOP regulation impermissibly conflicts with an unambiguous statute).

Nevertheless, Respondent “does not agree with Petitioner's statements,” ECF No. 12 at 2 n.1, and argues that Petitioner does not meet all the statutory requirements to earn ETCs under 18 U.S.C. § 3632(a), specifically, that inmates must have undergone a risk assessment and they must have been assigned specific EBRRs and PAs by the BOP to complete. But the subparagraph Respondent references clearly sets forth the duties and responsibilities of the Attorney General, not the eligibility requirements for inmates. 18 U.S.C. § 3632(a) (obligating “the Attorney General ․ [to] develop and release publicly on the Department of Justice website a risk and needs assessment system ․”). The statute's only reference to eligibility for ETCs is found in subparagraph (d)(4)(D), which enumerates all those crimes of conviction that render an inmate ineligible to receive ETCs. There are no other prerequisites to earning ETCs explicitly delineated in the FSA.

Respondent interprets the FSA mandates of the Attorney General, though, as implicit requirements for inmates, and states that Petitioner's position, which would permit inmates to earn ETCs for any programming of their choosing, surpasses what the FSA allows. ECF No. 12 at 5. Respondent also footnotes that BOP currently allows inmates to earn ETCs for completing programming that is not assigned to them provided they also enroll in assigned programming. Thus, it appears BOP finds no statutory impediment to allowing inmates to accrue ETCs for unassigned programming. Moreover, there is nothing in the statute that states that an assessment must be completed before an inmate can earn any ETCs, or that programming completed pre- and post- assessment should be treated differently. To the contrary, while the statute obligates BOP to assign specific EBRRs and PAs to the inmates based upon their needs and risks, it incentivizes participation in and completion of any EBRRs and PAs. See 18 U.S.C. § 3632(d) (providing for incentives for participation in or completion of EBRRs and PAs generally, without specifying that the programs must be assigned by the BOP).

The court thus concludes that the assessment is necessary to the scheme insofar as it allows BOP to identify those programs which will allow inmates to reduce their risk score, and consequently, those programs most likely to reduce recidivism overall, but it is not a prerequisite for earning ETCs. To conclude otherwise would render the FSA internally inconsistent: although Congress specifically prohibits inmates from earning ETCs before the start of their sentence, Respondent's position effectively prohibits inmates from accruing ETCs before they arrive at their designated facility, which may in some cases be several months after their sentence begins. See, e.g. Yufenyuy, 659 F. Supp. 3d at 215 (noting that the petitioner was not transferred to his BOP-designated facility until over five months after his sentencing). This position would render wholly ineffective the legislature's clear language regarding when ETCs may not be earned.

Accordingly, the court finds Respondent's arguments in opposition to the Petition to be unpersuasive. Further, the court agrees with Petitioner that he is entitled to accrue ETCs for programming completed after he started his sentence.

The court disagrees with Petitioner, however, as to the date he started his sentence. Although Petitioner seeks credit for any programming he completed after his first sentencing on August 31, 2021, Petitioner was not detained for transport to his designated facility after his first sentencing. Rather, he remained in custody for the purpose of being transported to another sentencing. He was not detained awaiting transport to his designated facility until September 22, 2022, after he was sentenced in the Eastern District of New York. Thus, that is his commencement date for purposes of the FSA. See Alcantara v. Hollingsworth, 186 F. Supp. 3d 332, 340 (D.N.J. 2016) (concluding that where an inmate had two cases pending simultaneously in two separate federal district courts, and the inmate was transported to each district consecutively for criminal proceedings, the inmate's sentence did not commence until the day the second sentence was imposed); Walton v. Maye, No. A-10-CV-844 SS, 2011 WL 3423361, at *6 (W.D. Tex. Aug. 5, 2011) (concluding that where an inmate “was transferred from Tennessee to Philadelphia not to ‘await transport’ to the BOP, but rather to stand trial on the charges in Philadelphia[,]” under the plain language of § 3585(a) the inmate's first-imposed sentence did not commence until the second sentence was imposed).

Indeed, the plain statutory language of the FSA clearly contemplates situations in which an inmate might participate in EBRRs or PAs before their sentence commences, and moreover, the Act declines to award ETCs for any such participation. 18 U.S.C. § 3632(d)(B). This is the precise circumstance presented here, and thus the outcome established by Congress must be followed. Of course, while the time Petitioner was in custody between his two sentencings may have been credited to his term of imprisonment pursuant to 18 U.S.C. § 3585(b), that does not alter when his sentence began.

Finally, while it is true that no inmate's ETCs may be applied until the inmate has accrued enough ETCs to equal the number of days they have remaining in their jail sentence, this ruling will require the BOP to recalculate Petitioner's ETCs, thus mooting that argument from Respondent. Whether or not Petitioner is yet eligible to apply his ETCs, he was eligible to accrue them during the period after his second sentencing and before his arrival at FCI Danbury.

IV. CONCLUSION

For the foregoing reasons, it hereby is ORDERED and ADJUDGED as follows:

1. The Petition for habeas corpus relief under 28 U.S.C. § 2241 is GRANTED in part and DENIED in part. Respondent is instructed to recalculate Petitioner's earned time credits under the First Step Act such that he is credited for any EBRRs and PAs he participated in or completed following September 22, 2022.

2. Given this ruling disposes of the Petition in full, the motions to expedite filed at ECF Nos. 18 and 20 hereby are DISMISSED as moot.

3. The Clerk of Court is instructed, respectfully, to please close this case.

IT IS SO ORDERED at Hartford, Connecticut, this 8th day of August, 2024.

FOOTNOTES

1.   None of the sur-replies were filed with leave of court. Nevertheless, the court has reviewed them in preparing this ruling.

2.   He originally was sentenced to 24 months’ incarceration, but this sentence later was amended. ECF No. 9-2 ¶ 5–6.

3.   Plaintiff also was sentenced to a term of supervised release at both sentencings, but those terms are not relevant here.

OMAR A. WILLIAMS, UNITED STATES DISTRICT JUDGE