Woolsey v. Keyes (INMATE 1)

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

ALAN WOOLSEY, )

Reg. No. 22616-026, )

)

Petitioner, )

)

v. ) CASE NO. 2:25-CV-137-WKW

) [WO]

WARDEN MILTON WASHINGTON, )

)

Respondent. )

MEMORANDUM OPINION AND ORDER

I. INTRODUCTION

This is a First Step Act (FSA) case concerning the calculation and crediting

of earned time credits, which Respondent argues is unreviewable by the court.

However, the statute’s stipulation of “shall” speaks otherwise. Specifically, the FSA

says:

Time credits earned under this paragraph by prisoners who successfully

participate in recidivism reduction programs or productive activities

shall be applied toward time in prerelease custody or supervised

release. The Director of the Bureau of Prisons shall transfer eligible

prisoners, as determined under section 3624(g), into prerelease custody

or supervised release.

18 U.S.C. § 3632(d)(4)(C) (emphasis added) (citing 18 U.S.C. § 3624(g)).

Proceeding pro se, Petitioner filed this Petition for Writ of Habeas Corpus

under 28 U.S.C. § 2241. (Doc. # 1.) Since the time of filing to date, Petitioner has

been incarcerated at the Federal Prison Camp in Montgomery, Alabama, and

Petitioner appropriately has named the warden as the respondent.1 This FSA case

centers on the claimed wrongful withholding and rescission of earned time credits

that should have been applied toward prerelease custody. Although Petitioner

admits receiving earned time credits for the full one-year sentence reduction for early

transfer to supervised release, see § 3624(g)(3), he argues that additional earned time

credits should have been applied toward his time in prerelease custody. (Doc. # 1

at 5.) He seeks an order for these credits to be applied for immediate transfer to

prerelease custody under § 3632(d)(4)(C). (Doc. # 1 at 6.)

Answering the petition, Respondent contends that the court lacks jurisdiction

under § 2241 because Petitioner is challenging the conditions, rather than the

duration, of his confinement. (See Doc. # 12 at 4–5.) Respondent also argues that,

statutorily, the court cannot interfere with the Bureau of Prisons’ decisions regarding

the calculation and application of FSA time credits for prerelease custody. (Doc. #

12 at 6, 9–10, 12.) Alternatively, Respondent contends that Petitioner fails as a

matter of law to allege a constitutional violation implicating a protected liberty

interest. (Doc. # 12 at 6.) Notably, Respondent has not addressed the merits of

1 In a § 2241 petition, the correct respondent is the individual who has custody over the petitioner.

See Rumsfeld v. Padilla, 542 U.S. 426, 434 (2004). A prisoner filing a § 2241 petition must name

the warden of the facility where he is confined. The caption has been updated to reflect the

warden’s correct name, and the Clerk of Court is directed to amend the caption accordingly.

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Petitioner’s claims challenging the alleged miscalculation of earned time credits

under the FSA. (Doc. # 12.) Petitioner filed a reply brief contesting Respondent’s

arguments and clarifying his claims. (See Doc. # 14.)

Based upon careful consideration, the petition will be examined under the

standards governing motions under Rules 12(b)(1) and 12(b)(6) of the Federal Rules

of Civil Procedure. The petition mostly passes scrutiny under these standards;

therefore, additional briefing on the merits will be required, and this action will be

set for an evidentiary hearing on the merits.

II. BACKGROUND

A. Judgment of Conviction, Sentencing, and Prison Designation

On October 7, 2019, the United States District Court for the Central District

of Illinois sentenced Defendant to 180 months of imprisonment and ten years of

supervised release for possession of methamphetamine with intent to distribute in

violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A).2 See United States v. Woolsey,

No. 18-10052-001 (C.D. Ill. Oct. 7, 2019), ECF No. 33. On the same date, the court

remanded Petitioner to the custody of the United States Marshal. Id. However, as

sometimes is the case, Petitioner was not transported immediately to his designated

2 In May 2023, the sentencing court reduced Petitioner’s sentence to 153 months for “changed

circumstances” but left intact the ten-year period of supervised release. See Woolsey, No. 18-

10052-001 (C.D. Ill. May 11, 2023), ECF No. 49.

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Bureau of Prisons (BOP) facility for service of his sentence. He arrived at his

designated BOP facility on November 13, 2019. (Doc. # 1 at 3.)

B. Petitioner’s Allegations and Relief Sought

As discussed in more detail below, under the FSA, eligible federal prisoners

can accrue program days that allow them to earn time credits toward early transfer

to supervised release and/or early placement in prerelease custody. Petitioner claims

entitlement to 37 program days during the period when he was awaiting transport

after sentencing to his designated prison (i.e., October 7, 2019, through November

13, 2019). Also, Petitioner claims that the BOP denied him an additional 10 program

days between October 23, 2021, and November 8, 2021. Although these 10 program

days may have been withheld due to a pending transfer between correctional

facilities, the reason is not clear but will be assumed for the time being. Petitioner

says that the BOP has marked these 47 program days as “disallowed.” (Doc. # 1

at 3; see also Doc. # 1-1 at 94.)

Petitioner asserts that starting May 14, 2020, the date he believes he should

have been assessed as a low recidivism risk for the second consecutive time, the

BOP has incorrectly awarded him only 10 days of earned time credits per month

instead of 15. Although his May 14, 2020 assessment is the only one where the BOP

has designated him as low risk, he argues that he would have received the same

rating but for multiple documentation errors, including the BOP’s failure to record

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the GED he earned prior to incarceration. These errors have prevented him from

earning the additional 5 earned time credits per month. Additionally, he claims that

in April 2021, the BOP erroneously changed his risk level from low to medium and

applied this change retroactively, causing him to lose previously earned FSA time

credits. These events are a sample of the systematic errors he attributes to the BOP.

(Doc. # 1 at 1, 3–4.)

Petitioner accrued 365 days of FSA earned time credits that the BOP applied

to reduce his projected release date from July 23, 2029, to July 23, 2028. (Doc. # 1

at 5; Doc. # 1-1 at 14; Doc. # 12-1.) This is the maximum number of days—365—

permitted by statute for reducing a custodial sentence where a petitioner is subject

to a term of supervised release. 18 U.S.C. § 3624(g)(3). This much is not in dispute.

(See, e.g., Doc. # 1 at 5.) However, Petitioner contends that he has earned additional

credits that the BOP has wrongfully withheld or rescinded. (Doc. # 1 at 5.)

Petitioner maintains that, after applying the additional FSA earned time credits, his

eligibility date for transfer to prerelease custody was April 19, 2025. (Doc. # 1 at 2.)

However, the BOP calculates that date differently, having assessed his eligibility

date for prerelease custody as January 24, 2028. (Doc. # 12 at 2.)

To correct the BOP’s alleged errors, Petitioner requests that the court order

the BOP to do the following: (a) apply FSA earned time credits beginning October

7, 2019, the date Petitioner was sentenced, (b) apply 15 days of FSA earned time

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credits per month beginning on May 14, 2020, and (c) calculate and apply FSA

earned time credits “at the rate stipulated in the FSA . . . , thus transferring [him] to

prerelease custody immediately.”3 (Doc. # 1 at 6.)

C. Procedural History

After a review of the petition and Petitioner’s payment of the filing fee, the

court ordered service of the summons and petition on Respondent and the United

States Attorney for the Middle District of Alabama. (Doc. # 5, Order dated Mar. 5,

2025.) The Order directed Respondent to file an answer detailing why the petition

should not be granted, raising any applicable defenses, and providing all relevant

BOP records and affidavits (or sworn statements) related to the claims in the petition.

The Order also specified that filing dispositive motions would require court approval

and that Petitioner had 60 days from the Order’s date to amend the petition. (Doc.

# 5.)

Respondent answered the petition. (Doc. # 12.) The court ordered Petitioner

to file a reply to the response and show cause “why his Petition should not be

dismissed for the reasons cited by Respondent.” (Doc. # 13.) The Order further

explained that the court would decide if an evidentiary hearing is needed and, if not,

3 Petitioner also cursorily requests the award of any credits for which he is eligible under the

Second Chance Act of 2007. (Doc. # 1 at 6.) However, there are no allegations in the body of the

petition that raise claims under the Second Chance Act. This case is not about the Second Chance

Act.

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would resolve the petition as justice requires. (Doc. # 13 (citing Rule 8(a), Rules

Governing Section 2254 Cases in the United States District Courts)); see also 28

U.S.C. § 2243 (“The court shall summarily hear and determine the facts, and dispose

of the matter as law and justice require.”). Petitioner complied with the Order by

filing a reply brief. (Doc. # 14.)

III. JURISDICTION

Section 2241(a) grants jurisdiction to the district court to provide habeas relief

when the inmate is confined within its district at the time the petition is filed. See

Rumsfeld v. Padilla, 542 U.S. 426, 434 n.7 (2004); Fernandez v. United States, 941

F.2d 1488, 1495 (11th Cir. 1991). Respondent does not contest this statutory grant

of jurisdiction but argues that subject matter jurisdiction under § 2241 does not exist

for relief seeking placement in prerelease custody based on allegedly wrongfully

denied FSA earned time credits. See generally Rumsfeld, 542 U.S. at 434 n.7

(referring to jurisdiction “in the sense that it is used in the habeas statute, 28 U.S.C.

§ 2241(a), and not in the sense of subject-matter jurisdiction of the District Court”).

This jurisdictional issue is addressed below.

IV. STANDARDS OF REVIEW

Given Respondent’s arguments (Doc. # 12), Petitioner’s counterarguments

(Doc. # 14), and the court’s pronouncement to resolve the petition as justice requires

(Doc. # 13), the petition will be evaluated under the standards governing motions to

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dismiss for lack of subject matter jurisdiction and for failure to state a claim under

Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. See Rodriguez

v. Fla. Dep’t of Corr., 748 F.3d 1073, 1075 (11th Cir. 2014) (observing that courts

may supplement the Rules Governing Section 2254 Cases in the United States

District Courts with the Federal Rules of Civil Procedure when not inconsistent)

(citing Rules Governing Section 2254 Cases, Rule 12)4; cf. Cardoza v. Pullen, 2022

WL 3212408, at *3 (D. Conn. Aug. 9, 2022) (A court examines “a motion to dismiss

a habeas petition according to the same principles as a motion to dismiss a civil

complaint under Federal Rule of Civil Procedure 12(b)(6).”).

Under Rule 12(b)(1), challenges to subject matter jurisdiction can be either

facial or factual. Carmichael v. Kellogg, Brown & Root Servs., Inc., 572 F.3d 1271,

1279 (11th Cir. 2009). In this case, the review will be facial. Facial attacks

challenge subject matter jurisdiction based on the allegations in the petition, and the

district court takes the allegations as true in deciding whether to dismiss the petition.

See Morrison v. Amway Corp., 323 F.3d 920, 925 n.5 (11th Cir. 2003) (citing

Lawrence v. Dunbar, 919 F.2d 1525, 1528–29 (11th Cir. 1990)). Regardless of the

type of challenge, the burden to establish federal subject matter jurisdiction rests

with the party bringing the claim. Sweet Pea Marine, Ltd. v. APJ Marine, Inc., 411

4 The Rules Governing Section 2254 Cases in the United States District Courts apply to § 2241

petitions under Rule l(b).

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F.3d 1242, 1247 (11th Cir. 2005) (citing McCormick v. Aderholt, 293 F.3d 1254,

1257 (11th Cir. 2002) (per curiam)). To withstand Rule 12(b)(6) scrutiny, the

petition “must contain sufficient factual matter, accepted as true, to ‘state a claim to

relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

Two additional considerations are pertinent. First, exhibits attached to a

petition are considered part of the petition and may be considered. See Hoefling v.

City of Miami, 811 F.3d 1271, 1277 (11th Cir. 2016). Second, a court may consider

“a document attached to a motion to dismiss without converting the motion into one

for summary judgment if the attached document is (1) central to the [petitioner’s]

claim and (2) undisputed[,]” meaning that “the authenticity of the document is not

challenged.” Day v. Taylor, 400 F.3d 1272, 1276 (11th Cir. 2005) (citation omitted);

see also Walsh v. Boncher, 652 F. Supp. 3d 161, 165 (D. Mass. 2023) (considering

the declaration of a BOP correctional programs officer on a motion to dismiss

because the authenticity of the declaration and the accompanying BOP records were

not disputed).

Furthermore, documents filed by pro se litigants must be “liberally

construed,” and “a pro se complaint, however inartfully pleaded, must be held to

less stringent standards than formal pleadings drafted by lawyers.” Erickson v.

Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106

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(1976)); see also Fed. R. Civ. P. 8(e) (“Pleadings must be construed so as to do

justice.”). Courts also must “look behind the label” of a claim to see if, properly

characterized, it fits a different statutory framework. United States v. Jordan, 915

F.2d 622, 624–25 (11th Cir. 1990). However, “a court may not serve as de facto

counsel for a party or rewrite a pleading.” United States v. Cordero, 7 F.4th 1058,

1068 n.11 (11th Cir. 2021) (citation and internal quotation marks omitted).

It is through these lenses that the court considers the petition and the

arguments.

V. DISCUSSION

Respondent’s arguments for dismissing the petition can be distilled into three

points, with the first two addressing jurisdictional issues. First, Respondent argues

that habeas jurisdiction is absent because the BOP has applied the maximum 365

days of FSA earned time credits permitted by statute to reduce Petitioner’s sentence

and transition him to supervised release. (See Doc. # 12 at 4–9.) According to

Respondent, any additional FSA earned time credits would affect only Petitioner’s

eligibility for prerelease custody, rather than the actual length of his sentence,

thereby making it a conditions-of-confinement claim. Second, under the

Administrative Procedure Act, Congress has stripped federal courts of habeas

jurisdiction to review individualized BOP decisions affecting the earning or

application of FSA time credits. (See Doc. # 12 at 9–12.) Third, a federal prisoner

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does not possess a liberty interest in FSA earned time credits or in his place of

imprisonment that is protected by the Due Process Clause of the Fifth Amendment.5

(See Doc. # 12 at 6–8.)

Because Petitioner’s eligibility to earn and apply FSA time credits is central

to the allegations raised in the petition, the discussion will begin with a summary of

the relevant statutory framework, starting with the statutory landscape preceding the

FSA.

A. Statutory Setting Preceding the FSA

After a district court sentences a federal defendant, the United States Attorney

General, through the BOP, administers the sentence. See United States v. Wilson,

503 U.S. 329, 335 (1992). Federal inmates who are “sentenced to a term of

imprisonment . . . shall be committed to the custody of the [BOP] until the expiration

of the term imposed, or until earlier released for satisfactory behavior.” 18 U.S.C.

§ 3621(a). The BOP determines the place of imprisonment by evaluating several

factors, including facility resources, the nature of the offense, the prisoner’s history

and characteristics, statements from the sentencing court, and relevant policy

statements from the Sentencing Commission. § 3621(b). Conferring substantial

5 Petitioner argues that he has exhausted his administrative remedies (Doc. # 1 at 3), and

Respondent has not challenged that assertion. Because failure to exhaust administrative remedies

is not jurisdictional and absent a challenge by Respondent, the court will accept Petitioner’s

argument. See Santiago-Lugo v. Warden, 785 F.3d 467, 474 (11th Cir. 2015).

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discretion on the BOP, Congress mandated that “a designation of a place of

imprisonment . . . is not reviewable by any court.” Id. Congress also has provided

that the provisions of the Administrative Procedure Act (APA), 5 U.S.C. §§ 554–55,

701–06, “do not apply to the making of any determination, decision, or order” under

18 U.S.C. §§ 3621–26. Id. at § 3625. Sections 3621 through 3626 are the provisions

governing the BOP’s placement designations.

Later, Congress enacted the Second Chance Act of 2007 (SCA) to “assist

offenders reentering the community from incarceration to establish a self-sustaining

and law-abiding life by providing sufficient transitional services.” Pub. L. No. 110-

199, § 3(a)(5), 122 Stat. 657 (2008). The SCA helps offenders reintegrate by

expanding access to prerelease custody for up to 12 months “to the extent

practicable.” 18 U.S.C. § 3624(c)(1). Prerelease custody includes placement in

home confinement for the shorter of 6 months or 10% of the prisoner’s term of

imprisonment. § 3624(c) (2). The transition to prerelease custody is subject to the

BOP’s discretion under § 3621(b). See § 3624(c)(4). The SCA predates the FSA

and was the only mechanism for prerelease custody for BOP prisoners until the FSA

passed.

B. FSA Earned Time Credits

In 2018, Congress passed the FSA to broaden prisoners’ access to non-

custodial placements. See Pub. L. No. 115-391, 132 Stat. 5194 (2018) (codified at

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18 U.S.C. §§ 3621, 3624, 3631–35). The FSA’s provisions work together to

motivate inmates to participate in specific programs and activities by allowing them

to receive “earned time credits” for participating in “recidivism reduction

programs.” §§ 3621(h), 3624(g), 3632.

Section 3621(h) governs the BOP’s implementation of the risk and needs

assessment system developed under § 3632. It requires the BOP to conduct initial

assessments for all inmates, assign them to appropriate evidence-based recidivism

reduction (EBRR) programs or productive activities (PAs), and expand the

availability of such programs.

Section 3632 mandates the Attorney General’s development of a “risk and

needs assessment system,” which serves as the foundation for the FSA’s recidivism

reduction framework. The system is designed to evaluate each inmate’s recidivism

risk, classify inmates into risk categories, and determine the type and amount of

EBRR programming or PAs appropriate for each inmate based on his or her

criminogenic needs. More specifically, in response to § 3632’s directives, the BOP

created the Prisoner Assessment Tool Targeting Estimated Risk and Needs

(PATTERN) to estimate inmates’ risks of recidivism and identify their needs for

programming. The four PATTERN risk scores are minimum, low, medium, and

high. See § 3632(a)(1); see also Walsh v. Boncher, 652 F. Supp. 3d 161, 164 (D.

Mass. 2023) (describing PATTERN). Eligible prisoners can earn 10 FSA time

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credits “for every 30 days of successful participation in” EBBR programming or

PAs. § 3632(d)(4)(A)(i). Inmates classified as minimum or low risk for recidivism

who maintain this classification over two consecutive assessments earn an extra 5

days of time credits for every 30 days of participation, totaling 15 days.

§ 3632(d)(4)(A)(ii).

Section 3632(d) also details the application of earned time credits for eligible

prisoners and specifies 68 categories of offenses that disqualify inmates from

receiving these credits. Section 3632(d)(4)(C) provides that

[t]ime credits earned under this paragraph by prisoners who

successfully participate in recidivism reduction programs or productive

activities shall be applied toward time in prerelease custody or

supervised release. The Director of the Bureau of Prisons shall transfer

eligible prisoners, as determined under section 3624(g), into prerelease

custody or supervised release.

Section 3624(g) outlines the eligibility criteria for prisoners. First, the

prisoner must have earned time credits equal to the remainder of his imposed term

of imprisonment. § 3624(g)(1)(A). Second, the prisoner must have demonstrated a

reduced recidivism risk or maintained a low risk during imprisonment.

§ 3624(g)(1)(B). Third, the prisoner’s remaining sentence must have been computed

“under applicable law.” § 3624(g)(1)(C). Fourth, for placement in prerelease

custody, the prisoner must have a minimum or low recidivism risk score in the last

two reassessments or have a petition approved by the warden. The warden must

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determine that the prisoner is not a danger to society, has made a good faith effort to

reduce his recidivism risk, and is unlikely to recidivate. See § 3624(g)(1)(D)(i).

Fifth, for placement in supervised release, the prisoner must have been assessed as

a minimum or low risk to recidivate in the last reassessment. § 3624(g)(1)(D)(ii).

Sections 3632(d)(4)(C) and 3624(g) thus work together, with § 3632(d)(4)(C)

providing the mechanism for prisoners to earn time credits and § 3624(g) governing

the eligibility and application of time credits.

Earned time credits are applied to accelerate an inmate’s transfer either to

prerelease custody, which includes residential reentry centers (RRCs) and home

confinement, or to supervised release if such a term has been imposed. See

§ 3624(g). Additionally, beyond extending time in prerelease custody, the BOP may

apply a prisoner’s earned time credits to enable an earlier release from custody to

supervised release. See § 3624(g)(3). Section 3624(g)(3) provides:

If the sentencing court included as a part of the prisoner’s sentence a

requirement that the prisoner be placed on a term of supervised release

after imprisonment pursuant to section 3583, the Director of the Bureau

of Prisons may transfer the prisoner to begin any such term of

supervised release at an earlier date, not to exceed 12 months, based on

the application of time credits under section 3632.

Id.; see also Guerriero v. Miami RRM, 2024 WL 2017730, at *1 (11th Cir. May 7,

2024) (per curiam).

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Under § 3624(g)(3), the BOP cannot apply more than one year’s worth of FSA

earned time credits toward early transfer to supervised release. In Guerriero, the

Eleventh Circuit confirmed the scope of § 3624(g)(3) by affirming the district

court’s decision that the BOP had “applied the maximum 12 months’ worth of

earned time credits allowed by the FSA to begin [the petitioner’s] term of supervised

release.” 2024 WL 2017730, at *1. However, unlike early transfer to supervised

release, the FSA does not impose a numerical cap on the amount of earned time

credits that can be applied toward transfer to prerelease custody.

C. Subject Matter Jurisdiction Under § 2241

The court tackles the jurisdictional issues first as it must. Because Petitioner

is proceeding pro se, his allegations are liberally construed to discern whether

jurisdiction exists to consider his petition “on a legally justifiable base.” Fernandez

v. United States, 941 F.2d 1488, 1491 (11th Cir. 1991).

Section 2241 offers a remedy for federal prisoners who are “in custody in

violation of the Constitution or laws or treaties of the United States.” § 2241(c)(3).

Federal prisoners can seek habeas corpus relief under § 2241 to challenge either

(1) the “fact or duration” of confinement, Preiser v. Rodriguez, 411 U.S. 475, 498

(1973), or (2) the execution of the sentence itself. Antonelli v. Warden, U.S.P.

Atlanta, 542 F.3d 1348, 1352 (11th Cir. 2008); see also Cortes-Morales v. Hastings,

827 F.3d 1009, 1014 (11th Cir. 2016) (holding that § 2241 petitions are proper “to

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challenge the execution, as opposed to the validity, of a sentence”) (citing Antonelli,

542 F.3d at 1352 n.1). Determining what constitutes a challenge to the execution of

a sentence—when its duration remains unchanged—is where things get murky. As

noted by the Third Circuit in Woodall v. Fed. Bureau of Prisons, “the precise

meaning of ‘execution of the sentence’ is hazy.” 432 F.3d 235, 242 (3d Cir. 2005).

1. Respondent’s Argument that Jurisdiction is Lacking over Claims

Seeking Immediate Placement in Prerelease Custody

Respondent contends that this court lacks jurisdiction to hear the § 2241

petition because the requested relief—immediate placement in prerelease custody

based upon allegedly wrongfully withheld FSA earned time credits—does not

impact the length of Petitioner’s sentence. (Doc. # 12 at 5.) Respondent argues that

the petition’s claims pertain solely to the conditions of confinement because the

relief sought would merely change the location of serving the custodial sentence, not

shorten it. He relies on the general premise that “[c]laims challenging the fact or

duration of a sentence fall within the ‘core’ of habeas corpus, while claims

challenging the conditions of confinement fall outside of habeas corpus law.” Vaz

v. Skinner, 634 F. App’x 778, 780 (11th Cir. 2015) (per curiam) (citations omitted);

see also Pinson v. Carvajal, 69 F.4th 1059, 1075 (9th Cir. 2023) (“[W]e recognize

that the Supreme Court has left open the key question of whether there are

circumstances when a challenge to the conditions of confinement is properly brought

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in a petition for writ of habeas corpus.”), cert. denied sub nom., Sands v. Bradley,

144 S. Ct. 1382 (2024). Respondent also references district court decisions from

other circuits that have determined that § 2241 does not grant jurisdiction for relief

requesting placement in prerelease custody because such relief changes only the

location for serving the sentence. (Doc. # 12 at 5–6 (citing district court decisions

from Arkansas, Mississippi, and Texas).)

Petitioner admits that the BOP has awarded him 365 days of earned time

credits to accelerate his projected release date to commence his term of supervised

release. (Doc. # 1 at 5.) No additional relief is available under the FSA for applying

earned time credits to reduce the length of Petitioner’s sentence. See § 3624(g)(3)

(limiting early transfers to supervised release to a statutory cap of 365 days).

Instead, as stated, Petitioner wants the BOP to apply the additional FSA

earned time credits to extend his time in prerelease custody. The weight of authority

indicates that prerelease custody is part of the term of imprisonment. In other words,

an inmate who is transferred to prerelease custody remains in the BOP’s custody

serving the sentence of imprisonment, although not in a brick-and-mortar prison

setting, and the parties have not argued otherwise. See, e.g., § 3624(c)(1) (providing

that the BOP must “ensure that a prisoner serving a term of imprisonment spends a

portion of the final months of that term (not to exceed 12 months), under conditions

that will afford that prisoner a reasonable opportunity to adjust to and prepare for the

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reentry of that prisoner into the community”) (emphasis added); United States v.

Houck, 2 F.4th 1082, 1085 (8th Cir. 2021) (treating placement in home confinement

as changing an inmate’s “place of imprisonment”); Wessels v. Houden, 2023 WL

7169154, at *1 (D. Minn. June 22, 2023) (“Prerelease custody is part of a term of

imprisonment.”) (citing § 3624(c) and collecting cases); Spang v. Eischen, 2023 WL

3495406, at *3 (D. Minn. May 17, 2023) (“Courts consistently address home

confinement as a place of imprisonment.”). Based on this authority, FSA earned time

credits applied to advance a prisoner’s placement on prerelease custody do not

impact the duration of the imposed term of imprisonment.

However, Respondent has not cited, and independent research has not

uncovered, any on-point binding precedent supporting the argument that § 2241 does

not confer jurisdiction for relief seeking placement in prerelease custody under the

FSA. It does not appear that the Eleventh Circuit has specifically addressed what

statutory vehicle should be used by a federal prisoner to challenge where a federal

sentence should be served for purposes of prerelease custody under the FSA.

There otherwise is a circuit split of authority on the issue of whether a § 2241

petition is proper for challenges pertaining to prerelease custody. To begin, there is

non-binding support for Respondent’s argument. For instance, the Fifth Circuit has

established a “‘bright-line rule’ . . . that if a favorable determination of the prisoner’s

claim would not automatically entitle him to accelerated release, then the proper

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vehicle is a civil rights suit.” Melot v. Bergami, 970 F.3d 596, 599 (5th Cir. 2020)

(emphasis added). In Melot, the Fifth Circuit ruled that § 2241 jurisdiction did not

encompass the petitioner’s claim regarding the improper denial of home

confinement under the FSA’s pilot program for eligible elderly offenders, even

though one might argue that the program permits release from “institutional

custody.” Id. Based on the holding in Melot, district courts in the Fifth Circuit have

applied this bright-line rule when a petitioner’s requested relief seeks placement in

prerelease custody. See, e.g., Quintero-Diarte v. Warden, Yazoo City Low, 2025 WL

1343037, at *1 (S.D. Miss. May 8, 2025) (holding that the prisoner’s petition could

not be brought under § 2241 because his claim that the FSA entitled him to serve the

remainder of his sentence in prerelease custody “challenge[d] only where he should

serve his sentence, not whether or how long he should serve”) (emphasis in original);

Lawrence v. Warden of Seagoville, 2025 WL 1240765, at *2 (N.D. Tex. Apr. 4,

2025) (“[P]rerelease placement to RRC or HC is a change in conditions of

confinement and is not cognizable under § 2241.”), report and recommendation

adopted, 2025 WL 1239725 (N.D. Tex. Apr. 29, 2025).

Furthermore, as cited by Respondent, district courts in the Eighth Circuit

similarly have found no jurisdiction under § 2241 for claims seeking FSA earned

time credits for prerelease custody. For example, in Reaves v. Garrett, the magistrate

judge entered a report and recommendation, concluding that jurisdiction under

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§ 2241 was lacking because “[p]lacement in pre-release custody changes only the

place where a sentence is served” and “does not alter the fact or duration of

imprisonment.” 2025 WL 890147, at *2 (E.D. Ark. Mar. 21, 2025), report and

recommendation adopted, 2025 WL 1118580 (E.D. Ark. Apr. 15, 2025). The

magistrate judge also noted that, although the Eighth Circuit previously had

considered claims for prerelease custody under § 2241, it had since clarified that

habeas jurisdiction is absent for such challenges because the relief does not affect

the length of the sentence. 2025 WL 890147, at *2 n.3 (citing Spencer v. Haynes,

774 F.3d 467, 469–70 (8th Cir. 2014), for the latter principle); see also Fongers v.

Garrett, 2024 WL 3625237, at *2 (E.D. Ark. Aug. 1, 2024) (recommending

dismissal of the § 2241 petition where the petitioner already had earned 365 days of

FSA time credits for early transfer to supervised release and any remaining credits

would affect the place of confinement (i.e., residential reentry center or home

confinement) but not the duration of custody), report and recommendation adopted,

2024 WL 4652193 (E.D. Ark. Nov. 1, 2024); Wessels v. Houden, 2023 WL 7169154,

at *1 (D. Minn. June 22, 2023) (“The Court has no habeas jurisdiction in this matter

because the only relief that Wessels seeks is a transfer to prerelease custody.”),

report and recommendation adopted, 2023 WL 7168926 (D. Minn. Oct. 31, 2023).

On the other side of the issue, at least three circuits—the First, Second, and

Third—have held that habeas jurisdiction is proper under § 2241 for pre-FSA claims

21

challenging denials of transfers to community confinement centers. See Francis v.

Maloney, 798 F.3d 33, 36 (1st Cir. 2015) (observing that § 2241 can be used “to

challenge placement (or lack thereof) in a community confinement center”)

(citations omitted).6 Similarly, in Levine v. Apker, the Second Circuit held that

jurisdiction existed under § 2241 for a challenge to the lawfulness of BOP agency

actions prohibiting the petitioner’s transfer to a “community corrections center”

(CCC), also described as a halfway house, until 10% of his sentence remained. 455

F.3d 71, 78 (2d Cir. 2006). The action impacted the petitioner’s “place of his

imprisonment, including the differences in the manner and conditions of

imprisonment (such as the degree of physical restriction and rules governing

prisoners’ activities) that distinguish CCCs from other BOP penal facilities.” Id.

Furthermore, as part of its jurisdictional holding, the Third Circuit has

distinguished incarceration in a penal institution from a halfway house.7 See

6 At least one district court in the First Circuit has relied on Francis to conclude that § 2241 is the

proper vehicle to “adjudicate claims . . . asserting that the BOP has unlawfully delayed a prisoner’s

transfer to a community-based custodial setting.” Doan v. FCI Berlin Warden, 2025 WL 971685,

at *2 (D.N.H. Feb. 24, 2025) (citing Francis, 798 F.3d at 36), report and recommendation adopted,

2025 WL 968927 (D.N.H. Mar. 31, 2025).

7 In Woodall v. Fed. Bureau of Prisons, the sentencing court’s judgment recommended that the

petitioner spend the last six months of imprisonment in a halfway house pursuant to § 3624(c).

432 F.3d 235, 238 (3d Cir. 2005). However, the BOP limited his placement in a halfway house to

10 weeks, citing internal regulations. The petitioner filed a habeas petition under § 2241, arguing

that the BOP’s regulations “impermissibly ignored the placement recommendations of his

sentencing judge.” Id. The Third Circuit held that the claim related to the execution of the sentence

and was properly brought under § 2241, as it involved the BOP’s failure to follow the district

court’s sentencing recommendation. See id. at 243–44. In this regard, Woodall differs from

22

Woodall v. Fed. Bureau of Prisons, 432 F.3d 235, 243 (3d Cir. 2005). The Woodall

court adopted a “plain meaning” approach to the definition of “execution,” which

means “to ‘put into effect’ or ‘carry out.’” Id. (citation omitted). The court

examined a former version of § 3624(c), which then permitted (and still permits)

placing prisoners in CCCs to prepare for re-entry into the community.8 Concluding

that the petitioner’s claim differed from “garden variety prison transfers” because

CCCs serve distinct goals, the court explained:

Carrying out a sentence through detention in a CCC is very different

from carrying out a sentence in an ordinary penal institution. More

specifically, in finding that Woodall’s action was properly brought

under § 2241, we determine that placement in a CCC represents more

than a simple transfer. Woodall’s petition crosses the line beyond a

challenge to, for example, a garden variety prison transfer.

The criteria for determining CCC placement are instrumental in

determining how a sentence will be “executed.” CCCs and similar

facilities, unlike other forms of incarceration, are part of the phase of

the corrections process focused on reintegrating an inmate into society.

The relevant statute specifically provides that a prisoner should be

placed in a CCC or similar institution at the end of a prison sentence to

“afford the prisoner a reasonable opportunity to adjust to and prepare

for . . . re-entry into the community.” 18 U.S.C. § 3624. CCCs thus

satisfy different goals from other types of confinement.

Woolsey’s case, as no argument or claim has been made that the sentencing court issued a

recommendation similar to the one in Woodall.

8 As one court has noted, “[A]t some point the BOP began referring to ‘halfway houses’ as

Residential Reentry Centers (RRC) instead of the former term Community Correctional Centers

. . . .” United States v. Siegel, 2013 WL 461217, at *1 (D. Vt. Feb. 7, 2013). Section 3624(c)(1)

retains the usage of “community correctional center,” while the FSA uses the term “residential

reentry center.” § 3624(g)(2)(B).

23

Id.9

The court finds the position of the First, Second, and Third Circuits more

persuasive. In particular, Woodall underscores the unique nature of CCC placements

compared to standard prison transfers. By recognizing that CCCs played a crucial

role in the reintegration process, the court highlighted that such placements are

integral to the execution of a sentence, rather than mere administrative decisions.

Woodall recognized that this distinction is pivotal for establishing habeas

jurisdiction under § 2241.

Woodall, a pre-FSA decision, focused on § 3624(c), which then and now,

promotes prerelease custody for prisoners approaching the end of their sentences to

help inmates transition back into the community. The introduction of § 3624(g) by

the FSA complements § 3624(c) by broadening the scope for prerelease custody

through earned time credits under the risk and needs assessment system. Both

subsections share the overarching goal of promoting successful reintegration into

society.

Additionally, there is pre-FSA authority from the Eleventh Circuit and its

lineage that supports Woodall’s jurisdictional approach. The decision in United

States v. Saldana, 273 F. App’x 845 (11th Cir. 2008), while unpublished, is

9 Woodall’s noted overruling risk pertains not to its jurisdictional holding but to its ruling on the

validity of the challenged 2005 BOP regulations.

24

instructive. In Saldana, federal prisoners, proceeding pro se, moved the district

court to “lift a separation order so that they [could] be confined in the same prison.”

Id. at 846. The Eleventh Circuit first addressed the correct statutory authority:

This Court has considered an attack by a federal prisoner on his place

of confinement to be relief sought pursuant to 28 U.S.C. § 2241.

Ledesma v. United States, 445 F.2d 1323, 1323–24 (5th Cir. 1971)

(affirming a district court construing a 28 U.S.C. § 2255 motion that

attacked the place of confinement as a § 2241 petition); see also Beck

v. Wilkes, 589 F.2d 901, 902–04 (5th Cir. 1979) (addressing a § 2241

petition that challenged the transfer of a federal prisoner from a federal

facility in Virginia to a federal facility in Georgia). The appellants are

challenging where they are confined. Thus, the district court should

have construed their motions as federal habeas petitions filed pursuant

28 U.S.C. § 2241.

Id. (internal footnote omitted).

Saldana relied on binding precent from the Fifth Circuit. See Bonner v. City

of Prichard, 661 F.2d 1206 (11th Cir. 1981) (adopting as binding precedent all Fifth

Circuit decisions rendered prior to October 1, 1981). Other district courts in this

circuit have cited Saldana with approval. See, e.g., Reyes v. Warden, FCI Jesup,

2025 WL 2463765, at *2 n.2 (S.D. Ga. July 25, 2025) (citing Saldana, 274 F. App’x

at 846) (noting that, while courts generally do not allow an inmate to challenge his

public safety factor (PSF) under § 2241, “[t]he more convincing line of authority

supports treating PSF challenges seeking release to home confinement as cognizable

in a § 2241 petition” (emphasis added)), report and recommendation adopted, 2025

WL 2463766 (S.D. Ga. Aug. 27, 2025); Jenner v. Stone, 2018 WL 2976995, at *1

25

(S.D. Ga. May 16, 2018) (citing Saldana, 273 F. App’x at 846) (observing that “the

Eleventh Circuit has found challenges by a federal prisoner to his place of

confinement may be considered in a § 2241 petition”), report and recommendation

adopted, 2018 WL 2972350 (S.D. Ga. June 13, 2018); Baranwal v. Stone, 2015 WL

171410, at *2 (S.D. Ga. Jan. 13, 2015) (citing Saldana, 273 F. App’x at 846)

(rejecting the argument that a § 2241 petition is not the proper vehicle for allegations

challenging “the denial of a transfer” and observing that “the Eleventh Circuit has

found that challenges by a federal prisoner to his place of confinement, such as

Petitioner’s challenge here, are proper in a § 2241 petition”); accord Meza v. Wells,

2009 WL 4250026, at *1 (S.D. Ga. Nov. 23, 2009). Additionally, a district court in

the Northern District of Alabama has recognized that “courts are divided on whether

§ 2241 is the proper route for claims seeking release to home confinement under the

. . . First Step Act.” Crinel v. Fed. Bureau of Prisons, 2021 WL 2559771, at *2

(N.D. Ala. May 21, 2021), report and recommendation adopted, 2021 WL 2555287

(N.D. Ala. June 22, 2021). The Crinel court found that “the petition’s claims relating

to the BOP’s refusal to release her to home confinement are best characterized as

challenges to the execution of her sentence, and therefore her petition is cognizable

under 28 U.S.C. § 2241.” Id.; see also Williams v. Flournoy, 732 F. App’x 810, 811

(11th Cir. 2018) (per curiam) (holding that a petition challenging the BOP’s refusal

26

to transfer a prisoner to a minimum-security camp constituted “a challenge to the

execution of his sentence,” thereby falling under § 2241 jurisdiction).

In conclusion, Respondent’s arguments do not address competing authority.

This authority includes the decisions from this circuit in Saldana, Ledesma, and

Beck, as well as from the First, Second, and Third Circuits, which have addressed

federal inmates’ challenges to the location of confinement under § 2241. In the

absence of more on-point precedent, these decisions support a finding that § 2241 is

the appropriate jurisdictional vehicle for challenging denials of placement in

prerelease custody under the FSA. Additionally, Woodall is persuasive for its

discussion of the distinction of CCCs from ordinary imprisonment. The court finds

that jurisdiction under § 2241 exists for Petitioner’s claims seeking placement in

prerelease custody.

2. Respondent’s Argument that 18 U.S.C. § 3625 Bars this Court’s

Jurisdiction

Respondent argues that Congress has stripped this court of jurisdiction “to

review the individualized administrative decision leading to [Petitioner] allegedly

being denied the opportunity to redeem FSA time credits in order to obtain

immediate halfway house placement.” (Doc. # 12 at 9.) He relies on 18 U.S.C.

§ 3625, titled “Inapplicability of the Administrative Procedure Act” (APA), as well

27

as on decisions from district courts in West Virginia, Kentucky, and Georgia. (Doc.

# 12 at 9–12.)

Section 3625 mandates that the provisions of the APA governing judicial

review (5 U.S.C. §§ 701–06) do not apply to “the making of any determination,

decision, or order under this subchapter” (which is Subchapter C). Subchapter C,

titled “imprisonment,” contains 18 U.S.C. §§ 3621 through 3626. The APA, thus,

plainly precludes this court’s review of the BOP’s decisions made under any

provision in §§ 3621 to 3626. See Reeb v. Thomas, 636 F.3d 1224, 1227 (9th Cir.

2011) (“To find that prisoners can bring habeas petitions under 28 U.S.C. § 2241 to

challenge the BOP’s discretionary determinations made pursuant to 18 U.S.C.

§ 3621 would be inconsistent with the language of 18 U.S.C. § 3625.”); see generally

Cook v. Wiley, 208 F.3d 1314, 1319 (11th Cir. 2000) (concluding that § 3625

precludes habeas review of the BOP’s “adjudicative decisions”). Additionally, the

FSA amended § 3621(b) to provide expressly: “Notwithstanding any other

provision of law, a designation of a place of imprisonment under this subsection is

not reviewable by any court.” § 3621(b) (emphasis added).

A number of courts have rejected prisoners’ challenges to the BOP’s decisions

affecting the calculation of FSA earned time credits, finding that they are not subject

to judicial review based on § 3625’s jurisdictional bar. See Monsevaiz v. Doerer,

2025 WL 808235, at *2 (C.D. Cal. Jan. 10, 2025) (“Decisions regarding a prisoner’s

28

recidivism risk appear to fall within [§ 3625’s] jurisdictional bar.”), report and

recommendation adopted, 2025 WL 808233 (C.D. Cal. Mar. 12, 2025); Brown v.

Holzapfel, 2024 WL 3264795, at *4 (S.D. W. Va. June 6, 2024) (“This Court agrees

. . . that 18 U.S.C. § 3625 excludes from judicial review . . . the implementation of

the risk and needs assessment system, 18 U.S.C. § 3621(h), and the BOP’s eligibility

determinations with respect to the application of FSA time credits[,] 18 U.S.C.

§ 3624(g)(1).” (internal quotation marks omitted)), report and recommendation

adopted, 2025 WL 19064, at *3 (S.D. W. Va. Jan. 2, 2025); Johnson v. O’Donnell,

2024 WL 3927643, at *3 (D.S.D. Mar. 29, 2024) (“A challenge to the BOP’s

calculation of a prisoner’s FSA credits in a specific case is an adjudicative decision

which is not subject to judicial review.” (citation omitted)), report and

recommendation adopted, 2024 WL 3925828 (D.S.D. Aug. 23, 2024); Newell v.

Fikes, 2023 WL 2543092, at *2 (S.D. Ga. Feb. 21, 2023) (“Newell’s requests for a

reduction of his recidivism risk level and whether to award 15 days’ credit for every

30 days of participation on EBRR programs falls under the purview of § 3625. The

BOP’s determination on this matter is an adjudicative, discretionary determination

and not a rulemaking one. ‘And that decision is not subject to judicial review.’”).

In his reply brief, Petitioner says that he “is not asking this Court to review

the individualized administrative decisions to withhold FSA credits to him.” (Doc.

# 14 at 3.) Instead, he says that he “is asking this Court to review the [allegedly]

29

unlawful BOP regulation[s] 28 C.F.R. § 523.42 and .44,” which he argues conflicts

with § 3632(d)(4) and has been used to deny his earned FSA time credits. (Doc. # 14

at 3–4 (alterations added).) Additionally, Petitioner’s allegations that the BOP

denied him 10 program days while he was in transit between federal facilities support

a claim, liberally construed, challenging 28 C.F.R. § 523.41(c)(4)(iii). (See Doc. # 1

at 4; Doc. # 14 at 2, 3.) The court interprets Petitioner’s reply brief as clarifying that

he is bringing three claims challenging the BOP’s regulations.

The first is a challenge to 28 C.F.R. § 523.44(a)(1) on grounds that it conflicts

with the FSA by improperly granting the BOP discretion over when to transfer

inmates to prerelease custody, despite Congress’s use of the word “shall.” Compare

§ 523.44(a)(1) with § 3632(d)(4)(C) (where the regulation substitutes “may” for the

statutory “shall”).10 The second is a challenge to 28 C.F.R. § 523.42(a). Petitioner

cites Sharma v. Peters in which the inmate successfully argued that this regulation

conflicts with 18 U.S.C. §§ 3585(a) and 3632(d)(4), concerning the commencement

date for earning FSA time credits.11 756 F. Supp. 3d 1271, 1280–82 (M.D. Ala.

10 Section 523.44, titled “Application of FSA Time Credits,” states that the BOP “may apply FSA

Time Credits toward prerelease custody or supervised release” when certain conditions are met.

§ 523.44(a)(1); accord § 523.44(c)–(d). The regulation uses “may” instead of “shall,” as found in

18 U.S.C. § 3632(d)(4)(C).

11 Section 523.42, titled “Earning First Step Act Credits,” states that “[a]n eligible inmate begins

earning FSA Time Credits after the inmate’s term of imprisonment commences (the date the

inmate arrives or voluntarily surrenders at the designated Bureau facility where the sentence will

be served).” § 523.42(a).

30

2024). The third is a challenge to 28 C.F.R. § 523.41(c)(4)(iii).12 In Sharma, the

court also ruled that the BOP’s reliance on 28 C.F.R. § 523.41(c)(4)(i–iv) to deem

the inmate ineligible for FSA earned time credits during certain periods, including

in-transit status, was wrong because the regulation contravened § 3632(d)(4)(B).

See id. at 1284–85. Although Petitioner’s § 2241 petition does not explicitly allege

that the BOP’s regulations—specifically, §§ 523.44(a)(1), 523.42(a), and

§ 523.41(c)(4)(iii)—conflict with federal statutes and have been improperly used to

withhold FSA earned time credits, the court construes Petitioner’s reply brief as a

clarification and more definite statement of his petition.

The Eleventh Circuit has held that 18 U.S.C. § 3625 does not preclude judicial

review where the petitioner challenges the underlying regulations that establish the

criteria governing the BOPs decision-making process. See Cook v. Wiley, 208 F.3d

1314, 1314 (11th Cir. 2000); see also United States v. Warmus, 151 F. App’x 783,

786 (11th Cir. 2005) (citing Lopez v. Davis, 531 U.S. 230, 232–33 (2001)) (holding

that “[a] prisoner in federal custody may bring an action under § 2241 to attack, inter

12 Section 523.41, titled “Definitions,” states that

(4) An eligible inmate, as described in paragraph (d) of this section, will generally

not be considered to be “successfully participating” in EBRR Programs or PAs in

situations including, but not limited to: . . .

(iii) Temporary transfer to the custody of another Federal or non–Federal

government agency (e.g., on state or Federal writ, transfer to state custody for

service of sentence, etc.)[.]

§ 523.41(c)(4)(iii).

31

alia, Bureau regulations”); Byrd v. Hasty, 142 F.3d 1395, 1397 (11th Cir. 1998)

(deciding an inmate’s challenge under § 2241 that the BOP’s interpretation of

§ 3621(e)(2)(B) conflicted with the plain language of the statute). Judicial review of

an agency’s regulation, however, is limited to “whether the agency acted outside its

statutory limits or violated the Constitution.”13 Newell v. Fikes, 2023 WL 2543092,

at *2 (S.D. Ga. Feb. 21, 2023) (citing Webster v. Doe, 486 U.S. 592, 597, 603 (1988)

(further citations omitted)), report and recommendation adopted, 2023 WL 2541126

(S.D. Ga. Mar. 16, 2023); accord Santiago-Lebron v. Fla. Parole Comm’n, 767 F.

Supp. 2d 1340, 1351 (S.D. Fla. 2011); see also Reeb v. Thomas, 636 F.3d 1224, 1228

(9th Cir. 2011) (holding that “judicial review remains available for allegations that

BOP action is contrary to established federal law, violates the United States

Constitution, or exceeds its statutory authority”).

In sum, judicial review is available for Petitioner’s claims that the BOP’s

regulations conflict with federal statutes, i.e., that the regulation exceeds the BOP’s

statutory authority. Hence, Petitioner adequately has stated the following claims,

13 The standard governing the court’s review of whether challenged BOP’s regulations are valid

statutory interpretations changed last year. In Loper Bright Enterprises v. Raimondo, 603 U.S. 369

(2024), the Supreme Court overruled Chevron U.S.A. Inc. v. Natural Resources Defense Council,

Inc., 467 U.S. 837 (1984), which mandated that federal courts defer to agency interpretations of

statutes, even if the court interpreted the statutes differently. Under Loper, federal courts now

must exercise independent judgment to determine whether an agency has acted within its statutory

authority and cannot defer to an agency’s interpretation simply because a statute is ambiguous.

Loper, 603 U.S. at 413.

32

making Rule 12(b)(6) dismissal inappropriate: (1) a claim that § 523.44(a)(1) cannot

categorically be applied to deny the application of FSA earned time credits

exceeding 365 days for prerelease custody; (2) a claim that § 523.42(a) cannot

categorically be applied to render Petitioner ineligible for 37 program days while

awaiting transport post-sentencing; and (3) a claim that § 523.41(c)(4)(iii) cannot

categorically be applied to render Petitioner ineligible for 10 program days due to a

pending transfer.

Petitioner has clarified that he is not seeking judicial review of the BOP’s

individualized decisions concerning him. (Doc. # 14 at 3.) This concession appears

to negate his claim that since May 14, 2020, the BOP has placed him in the wrong

recidivism risk category due to documentation errors, resulting in an award of only

10 days of FSA earned time credits per month instead of 15. See Monsevaiz v.

Doerer, 2025 WL 808235, at *2 (C.D. Cal. Jan. 10, 2025) (“Decisions regarding a

prisoner’s recidivism risk appear to fall within [§ 3625’s] jurisdictional bar.”).

Consequently, this claim will be dismissed.

D. Violation of the United States Constitution: The Fifth Amendment’s Due

Process Clause

Respondent’s next argument presumes that Petitioner is seeking habeas relief

for a violation of the Fifth Amendment’s Due Process Clause. See generally

§ 2241(c)(3) (extending the writ of habeas corpus to prisoners who are in custody

33

“in violation of the Constitution”). Respondent argues that Petitioner does not have

a protected liberty interest in the application of FSA earned time credits toward

prerelease custody. His position is that once an inmate accrues the maximum of 365

days of FSA credits for early transfer to supervised release and the BOP applies

those days to reduce the sentence, a habeas court can offer no further relief. (Doc.

# 12 at 6 nn.5, 8.) This argument reflects Respondent’s stance that prerelease

custody is part of the sentence and does not reduce its length.

Respondent also asserts that the BOP’s decisions on applying FSA earned

time credits to prerelease custody are discretionary and that such discretionary

decisions cannot establish liberty interests as a matter of law. (Doc. # 12 at 4 & 6

n.5 (citing Olim v. Wakinekona, 461 U.S. 238, 249 (1983) (recognizing that “[i]f the

decisionmaker is not ‘required to base its decisions on objective and defined

criteria,’ but instead ‘can deny the requested relief for any constitutionally

permissible reason or for no reason at all,’ the State has not created a constitutionally

protected liberty interest.” (internal citation omitted))).)

In his petition, Petitioner does not expressly allege a violation of the Fifth

Amendment’s Due Process Clause. However, he complains that in April 2021, the

BOP incorrectly changed his risk level from low to medium retroactively, resulting

in the loss of previously earned FSA time credits. (Doc. # 1 at 4.) He further claims

that the BOP revoked these FSA earned time credits despite his compliance with all

34

rules and that the “loss of” FSA earned time credits requires “written notice.” (Doc.

# 1 at 4, 5.) Also, in his reply brief, Petitioner argues a protected liberty interest in

“First Step Act prerelease custody,” citing the mandatory language (“shall”) in

§ 3632(d)(4)(C). (Doc. # 14 at 1.) Based upon a liberal interpretation of the petition,

as clarified in the reply brief, the court finds that Petitioner is asserting a procedural

due process claim under the Fifth Amendment, specifically, that the BOP rescinded

his earned FSA time credits without due process.

As relevant here, “to establish a violation of the Due Process Clause, a

petitioner must have been deprived of a liberty . . . interest protected under the Fifth

Amendment.” Cook v. Wiley, 208 F.3d 1314, 1322 (11th Cir. 2000). The initial step

is identifying whether Petitioner has alleged a protected liberty interest.

The Supreme Court in Wolff v. McDonnell established that prisoners do not

lose all due process protections by virtue of their incarceration. 418 U.S. 539, 555–

56 (1974) (“There is no iron curtain drawn between the Constitution and the prisons

of this country” and “a prisoner is not wholly stripped of constitutional protections

when he is imprisoned for crime.”). In Wolff, Nebraska inmates challenged the

revocation of good time credits without adequate procedures. Id. at 553. Nebraska’s

statutory scheme provided mandatory sentence reductions for good behavior and

allowed for forfeiture of such credits only for serious misconduct. Id. at 546–47.

The Court determined that while the Due Process Clause of the Fourteenth

35

Amendment itself does not inherently create a liberty interest in good time credits,

Nebraska’s statutory scheme did.14 Id. It held:

[T]he State having created the right to good time and itself recognizing

that its deprivation is a sanction authorized for major misconduct, the

prisoner’s interest has real substance and is sufficiently embraced

within Fourteenth Amendment ‘liberty’ to entitle him to those

minimum procedures appropriate under the circumstances and required

by the Due Process Clause to insure that the state-created right is not

arbitrarily abrogated.

Id. at 557; see also id. at 546 n.6 (discussing Nebraska’s statute governing good-

time credit). Wolff emphasized the necessity of due process before revoking earned

statutory good time credits. See Dean-Mitchell v. Reese, 837 F.3d 1107, 1112 (11th

Cir. 2016) (citing Wolff, 418 U.S. at 557–58) (“As the district court correctly

recognized, Dean–Mitchell has a protected liberty interest in the statutory Good–

Time credits that he has earned.”). However, it is important to note that Wolff did

not address a situation where the revocation of time credits did not impact the length

of a prisoner’s sentence.

Nearly two decades later, in Sandin v. Conner, the Court acknowledged that

after Wolff, it had taken a wrong turn in a series of cases. See 515 U.S. 472, 479–

483 (1995). It did so by shifting away from assessing “whether the State created an

14 Decisions interpreting the Fourteenth Amendment’s Due Process Clause also apply to the Fifth

Amendment’s Due Process Clause. As noted in Doe v. U.S. Department of Justice, “The Supreme

Court has consistently applied the same standards to determine deprivation of liberty without due

process under the fifth and the fourteenth amendments.” 753 F.2d 1092, 1105 n.13 (D.C. Cir.

1985) (citation omitted).

36

interest of ‘real substance’ comparable to the good time credit scheme of Wolff” and

instead focused on whether the State (primarily through prison regulations) “had

used ‘language of an unmistakably mandatory character’ such that the incursion on

liberty would not occur ‘absent specified substantive predicates.’” Id. at 480

(quoting and abrogating in part Hewitt v. Helms, 459 U.S. 460 (1983)). The decision

in Olim v. Wakinekona, 461 U.S. 238 (1983)—upon which Respondent relies—was

included in that series of cases. See Sandin, 515 U.S. at 481.

As the Sandin Court explained, this wrong turn led to two negative impacts.

First, states were discouraged from standardizing prison management procedures for

uniform treatment, as they might avoid creating liberty interests by minimizing

regulations or granting broad discretion to correctional staff. Second, the intense

focus on mandatory-versus-discretionary language resulted in increased federal

court involvement in daily prison management, often wasting judicial resources

without significant benefits. Id. at 482–83.

Sandin thus reversed course, “return[ing] to the due process principles”

established in Wolff. Id. at 483. Sandin recognized, as Wolff established, that “States

may under certain circumstances create liberty interests which are protected by the

Due Process Clause.” Id. In Wolff v. McDonnell, Nebraska had created a statutory

right to good time credits and “itself recogniz[ed] that its deprivation is a sanction

authorized for major misconduct.” 418 U.S. 539, 557 (1974). While Sandin

37

reaffirmed the holding in Wolff that due process rights attached to liberty interests of

“real substance,” it also narrowed the definition of what constitutes a liberty interest

of real substance. The Court held that liberty interests of real substance are confined

to “freedom from restraint” that either (1) “will inevitably affect the duration of [the

prisoner’s] sentence,” or (2) will impose “atypical and significant hardship on the

inmate in relation to the ordinary incidents of prison life.” Sandin, 515 U.S. at 484,

487.

In Sandin, the inmate challenged the imposition of segregated confinement

for thirty days as discipline. Id. at 475–76. The Court concentrated on the “nature

of the deprivation,” assessing its severity in degree or kind, rather than on the content

of the statute. Id. at 481. It held that the discipline imposed did not constitute “a

dramatic departure from the basic conditions of [the inmate’s] indeterminate

sentence” of thirty years to life. Id. at 485. As a result, the inmate was not entitled

to procedural due process protections before being placed in segregation. Id.

Respondent has not addressed or distinguished these Supreme Court

precedents. Based on these decisions, it is reasonable for Petitioner to argue that

Congress established a statutory right to FSA time credits, at least once they are

earned. The source of authority for the sought-after right in this case—the

application of earned FSA time credits for prerelease custody—is unequivocally a

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statute enacted by Congress.15 The FSA mandates that earned time credits “shall be

applied toward time in prerelease custody or supervised release” and that the BOP

“shall transfer eligible prisoners, as determined under section 3624(g), into

prerelease custody or supervised release.” 18 U.S.C. § 3632(d)(4)(C) (emphases

added). Section § 3624(g) outlines the eligibility criteria for inmates to have earned

time credits applied toward prerelease custody or early release to supervised release.

Once a prisoner is deemed eligible, the FSA requires (using the command “shall”)

that earned time credits must be applied in one of the two specified ways.

Furthermore, Congress mandates that the BOP provide protections for

prisoners whose FSA earned time credits are reduced based on violations of prison

rules or rules governing EBRR programs and PAs. See § 3632(e). These protections

include providing “written notice to the prisoner” and prohibit the BOP from

reducing “any future time credits that the prisoner may earn.” Id. These statutory

protections align this case with a key aspect of what Wolff found significant about

Nebraska’s statutory scheme, namely that it permitted the forfeiture or withholding

of earned credits only in instances of serious misconduct. 418 U.S. at 546–47.

The statutory language demonstrates that the right to FSA earned time credits

is established by legislative mandate. Once the credits are earned and the prisoner

15 Petitioner’s allegations that he has earned the FSA time credits are taken as true at this stage.

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meets the statutory eligibility criteria, Congress confers a benefit that cannot be

taken away without due process protections. Respondent’s focus on the BOP’s

discretion vis-à-vis prerelease custody decisions under the FSA does not undermine

this conclusion. (See Doc. # 12 at 4, 6 n.5.) True, the FSA gives a measure of

discretion to the BOP. The BOP has discretion to allocate earned time credits

between transfers to prerelease custody or supervised release. See § 3632(d)(4)(C).

This includes the option to apply credits entirely to advance the start of the term of

supervised release (up to a maximum of twelve months), to accelerate placement in

prerelease custody, or to do both. Komando v. Luna, 2023 WL 310580, at *7

(D.N.H. Jan. 13, 2023), report and recommendation adopted sub nom., Komando v.

FCI Berlin, Warden, 2023 WL 1782034 (D.N.H. Feb. 6, 2023); see also Morales v.

Brewer, 2023 WL 3626315, at *2 (E.D. Cal. May 24, 2023) (“Those courts to have

considered the issue have uniformly found that whether to apply FSA time credits

to prerelease custody or supervised release is within the discretion of the BOP.”

(collecting district court cases)), report and recommendation adopted, 2023 WL

4535042 (E.D. Cal. July 13, 2023). But the BOP does not have statutory discretion

to withhold application of FSA earned time credits “toward time in prerelease

custody or supervised release” to an eligible prisoner who has earned the credit. See

Guerriero v. Miami RRM, 2024 WL 2017730, at *2 (11th Cir. May 7, 2024) (per

curiam) (quoting § 3632(d)(4)(C)). “Shall” means “shall.” See Valladares v. Ray,

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130 F.4th 74, 79 (4th Cir. 2025) (citing § 3632(d)(4)(A)) (“The award and

computation of time credits is mandatory.”).16

What is less settled is whether Petitioner has alleged sufficient facts to satisfy

either of Sandin’s definitions of “real substance.” Sandin v. Conner, 515 U.S. 472,

484, 487 (1995). With respect to the first definition, “[a] hallmark example” that

affects the duration of the prisoner’s sentence “is the revocation of good-time

credit.” Kirby v. Siegelman, 195 F.3d 1285, 1291 (11th Cir. 1999) (per curiam)

(citing Sandin, 515 U.S. at 484). Petitioner has not argued that the denial of FSA

earned time credits toward prerelease custody affects the length of his sentence, and

rightly so. Thus, the second definition is at issue, and the court must decide whether

such a denial imposes “atypical and significant hardship on the inmate in relation to

the ordinary incidents of prison life.” Sandin, 418 U.S. at 487.

Some courts have found that the denial or revocation of prerelease custody

generally meets Sandin’s hardship standard. For instance, in Kuzmenko v. Phillips,

the court observed that “although Petitioner’s claim here may not ultimately change

16 Other district courts also have ruled that the BOP exercises no discretion to deny application of

earned FSA time credits. In Woodley v. Warden, UPS Leavenworth, the court concluded that under

§ 3632(d)(4)(C)’s directive of “shall,” the BOP is required to transfer a prisoner to prerelease

custody or supervised release if the prisoner is deemed “eligible” under § 3624(g). 2024 WL

2260904, at *2–3 (D. Kan. May 15, 2024). While Woodley was not addressing a due process

liberty interest argument, its ruling signaled the absence of the BOP’s discretion. Also, in Ramirez

v. Phillips, the court interpreted the application of earned time credits under the FSA as mandatory

for eligible prisoners. 2023 WL 8878993, at *4 (E.D. Cal. Dec. 22, 2023). It found that the BOP

does not have the discretion to exclude an eligible prisoner from having his earned time credits

applied because the language in § 3632(d)(4)(C) is mandatory. Id.

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the length of her custody, success on her argument would lead to her ‘earlier release

from confinement.’” 2025 WL 779743, at *3 (E.D. Cal. Mar. 10, 2025). It

emphasized that “[u]nlike the differences in confinement outlined in Sandin, the

difference between home confinement and detention in a custodial setting is

undoubtedly significant.” Id.; accord Martin v. Phillips, 2025 WL 732829, at *2

(E.D. Cal. Mar. 7, 2025).

Similarly, in Adepoju v. Scales, the court found that revoking an inmate’s

placement in an RRC and returning him to incarceration, even a low-security prison,

constituted “an atypical and significant hardship.” 2025 WL 1392287, at *11 (E.D.

Va. May 14, 2025). Additionally, in Wesa v. Engleman, the court determined that

release to home confinement, through FSA earned time credits, established a liberty

interest that warranted due process protections if revoked. See 2025 WL 2005224,

at *10–11 (C.D. Cal. June 6, 2025) (citing Wolff v. McDonnell, 418 U.S. 539, 557

(1974) and Young v. Harper, 520 U.S. 143, 145–48 (1997)). The Wesa court

elaborated that prerelease custody is fundamentally different from the prison setting:

“Petitioner was able to keep his own residence, maintain a job and visit with family

and friends such that his quality of life . . . was very different from that of

confinement in prison.” Id. at *11 (internal quotation marks and citation omitted).

The reasoning of these courts is persuasive, despite some courts having ruled

otherwise. See, e.g., Fiorito v. Fikes, 2022 WL 16699472, at *5 (D. Minn. Nov. 3,

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2022) (finding that the “application of FTCs is contingent on maintaining a minimal

or low risk of recidivism as assessed by the BOP” or obtaining an exception from

the warden and that this contingency “makes it doubtful that FTCs are a protected

liberty interest”), aff’d, 2023 WL 4841966 (8th Cir. July 28, 2023) (per curiam).

Here, Petitioner asserts that he earned FSA time credits, which subsequently

were rescinded. Additionally, he contends that he had satisfied the eligibility criteria

for these FSA earned time credits, yet they were taken away without due process.

(Doc. # 1 at 2, 4, 5.) These allegations are taken as true under the Rule 12(b)(6)

standard and arguably establish a liberty interest in the credits. In line with Wolff,

[T]he [Congress] having created the right to [FSA earned time credits]

and itself recognizing that its deprivation is a sanction authorized for

major misconduct, the prisoner’s interest has real substance and is

sufficiently embraced within [Fifth] Amendment ‘liberty’ to entitle him

to those minimum procedures appropriate under the circumstances and

required by the Due Process Clause to insure that the [federal-created]

right is not arbitrarily abrogated.

418 U.S. at 557 (alterations added). In sum, the principles established in Wolff and

refined in Sandin, when applied in the context of the FSA, support the conclusion

that Petitioner has a liberty interest in these earned time credits that cannot be

revoked without due process.

VI. CONCLUSION

Based on the foregoing discussion, jurisdiction is proper under § 2241,

enabling the court to review Petitioner’s challenges to BOP regulations that

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allegedly conflict with federal statutes and to the denial of placement in prerelease

custody under the FSA. To this extent, Respondent’s arguments for dismissal, citing

jurisdictional defects, are rejected. Additionally, Respondent’s arguments that

Petitioner does not have a protected liberty interest in the application of FSA earned

time credits toward prerelease custody are rejected. However, Petitioner’s claim

that, since May 14, 2020, the BOP incorrectly has assessed his recidivism level due

to documentation errors, resulting in an award of only 10 days of FSA earned time

credits per month instead of 15, is dismissed.

It is ORDERED that an evidentiary hearing on the merits is scheduled for

November 7, 2025, at 9:00 a.m. in Courtroom 2B of the Frank M. Johnson, Jr.

United States Courthouse, One Church Street, Montgomery, Alabama. The United

States Marshal’s Service is DIRECTED to secure the attendance of Petitioner at the

hearing.

Respondent is DIRECTED to file a brief on the merits of Petitioner’s claims,

along with supporting evidentiary materials, on or before October 10, 2025.

Petitioner is DIRECTED to file a response to Respondent’s brief, along with

supporting evidentiary materials, on or before October 24, 2025.

It is further ORDERED that, in the interests of justice, J. Mitchell McGuire,

Esq., is appointed provisionally to represent Petitioner, see 28 U.S.C.

§ 3006A(a)(2)(B). Counsel for Petitioner shall file a notice of appearance on or

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before September 17, 2025, and shall file under seal a financial affidavit from

Petitioner on or before September 24, 2025,

DONE this 8th day of September, 2025.

/s/ W. Keith Watkins

UNITED STATES DISTRICT JUDGE

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