ARTHUR MILES v. WARDEN BOWERS (2025)

ORDER ON REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE

I agree that the position taken by Magistrate Judge Boal is thoughtful and compassionate, but I cannot distinguish the case from my prior conclusion in Dunlap v. Warden FMC Devens, 2025 WL 35248 (D. Mass. January 6, 2025), that the decision of the Bureau of Prisons (BOP) to deny petitioner Earned Time Credits (ETCs) under the for the time that he was detained in a non-BOP designated facility awaiting his final sentence, “while arguably unfair, was not unlawful.” Id., at *1. As I noted in Dunlap, Congress in enacting the First Step Act (FSA) left certain lacunae for the BOP as the administrative agency to fill. As pertinent here, the FSA left it to the BOP to implement rules for determining when an inmate commences eligibility to earn ETCs. The pertinent rule as promulgated specifically excludes an inmate's participation in programming while temporarily transferred to the custody of non-BOP designated institution. While personally I might have drafted a fairer rule, as Magistrate Judge Levenson aptly stated in Dunlap, we are “constrained to consider only whether the Rule, or the BOP's application of its Rule, contravenes the FSA or otherwise violates [an inmate's] federal rights.” 2024 WL 5285006, at *6. (D. Mass. Dec. 13, 2024). Here, I conclude, as before, that it does not. Consequently, the Recommendation is OVERRULED, and the Respondent's motion to dismiss is GRANTED with prejudice. The Clerk will enter judgment for the Respondent and close the case.¹

SO ORDERED.

FOOTNOTES

1.   Petitioner is advised that any request for the issuance of a Certificate of Appealability pursuant to 28 U.S.C. § 2253 of the court's Order granting Respondent's motion to dismiss is also DENIED, the court seeing no meritorious or substantial basis supporting an appeal.

Richard G. Stearns UNITED STATES DISTRICT JUDGE