Petition for Writ of Certiorari — Daniel Joseph Teed, Petitioner v. Warden, Allenwood FCI Low

Supreme Court briefDec 4, 2023

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FILED

DEC 0 4 2023

»;*•

No.

SUPREM°FCTOUR9LnsK

IN THE

SUPREME COURT OF THE UNITED STATES

DANIEL JOSEPH TEED

— PETITIONER

(Your Name)

vs.

THOMPSON, WARDEN FCI ALLENWOOD LOW — RESPONDENT(S)

ON PETITION FOR A WRIT OF CERTIORARI TO

THIRD CIRCUIT' COURT OF APPEALS____________________________

(NAME OF COURT THAT LAST RULED ON MERITS OF YOUR CASE)

PETITION FOR WRIT OF CERTIORARI

DANIEL JOSEPH TEED, pro se

(Your Name)

FCI LORETTO

P.O. BOX 1000

(Address)

CRESSON, PA

16630

(City, State, Zip Code)

N/A

(Phone Number)

•

RECEIVED

DEC - 7 2023

OFFICE OF THE CLERK

SUPREME COI IRTTl R

QUESTIONS PRESENTED

Is the ineligibility provision of 18 USC §3632(d)(4)(D)

constitutional?

First Step Act Time Credits have a direct

and certain effect on the length of an inmate's sentence; when

applied, entitle the inmate to an earlier release from custody

as mandated by the statute,

Contrary to accepted maxims of

interpretation, the ineligibility provisions of §3632(d)(4)(D),

First Step Act of 2018, Pub. L. No. 115-391, deliberately and

arbitrarily exclude a class of inmates from Time Credit benefit,

departing from traditional constitutional principles of

substantive due process and equal protection.

II. Can the Federal Bureau of Prisons determine First Step Act

Time Credit eligibility through administrative aggregation

under 18 USC §3584(c)?

The imposition of sentences is a

function of the judicial process.

The question of substance

here, presents significant importance in federal law and the

need to resolve the needless conflict among Circuit Courts on

the issue of administrative aggregation by the Federal Bureau

of Prisons' treatment of charge allocation being equally and

fully allocable to each constituent offense.

-i-

...

■s

LIST OF PARTIES

lx ] All parties appear in the caption of the case on the cover page.

[ ] All parties do not appear in the caption of the case on the cover page. A list of

all parties to the proceeding in the court whose judgment is the subject of this

petition is as follows:

-ii-

TABLE OF CONTENTS

QUESTIONS PRESENTED

LIST OF PARTIES

TABLE OF CONTENTS

iii

INDEX OF APPENDICES

TABLE OF AUTHORITES

OPINIONS BELOW

JURISDICTIONAL STATEMENT

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

STATEMENT OF CASE ___

Relevant Framework

REASONS FOR GRANTING THE PETITION

STATUTORILY MANDATED FIRST STEP ACT TIME CREDITS ARE LIBERTY

INTERESTS THAT ARE CONSTITUTIONALLY PROTECTED

18 USC §3632(d)(4)(D) is based on False Premise,

Thus Unconstitutional

Irrebuttable Presumptions are Unconstitutional When Based

on a False Premise

First Step Act Time Credits Premised on Evidence-Based

Recidivism Reduction Programs Differs from Other Types

of Early Release Programs .............................................

II. FIRST STEP ACT ELIGIBILITY IS MANDATED BY STATUTE, NOT

ADMINISTRATIVE AGGREGATION

First Step Act Time Credit Eligibility is Offense Specific .

Administrative Aggregation under 18 USC §3584(c) Does

Not Grant the Bureau of Prisons Authority to Redefine or

Narrow First Step Act Time Credit Eligibility

-iii-

TABLE OF CONTENTS (cont.)

Bureau of Prisons1 Policy Creates Unnecessary and

Conflicting Split in the Circuit Court of Appeals .........

Bureau of Prisons' Policy Does Not Mirror the First Step

Act Statute

CONCLUSION

CERTIFICATE OF COMPLIANCE

PROOF OF SERVICE

INDEX OF APPENDICES

APPENDIX A

COURT OF CIRCUIT FOR THE THIRD CIRCUIT RULING

APPENDIX B

U.S. DISTRICT COURT RULING

APPENDIX C

THIRD CIRCUIT COURT' OF APPEALS REHEARING ORDER

APPENDIX D

CONSTITUTION AND STATUTORY PROVISIONS

APPENDIX E

RECIDIVISM SUMMARY DATA TABLES

-iv-

TABLE OF AUTHORITIES

CASES

PAGE

Belli v. Burson, 402 U.S. 535 (1971) ...........................

Board of Pardons v. Allen, 482 U.S. 369, 277 (1987)

10,,11, 16

Cleveland Bd. of Ed. v. LaFleur, 414 U.S. 632 (1974)

12, 15, 16

Daniels v. Williams, 474 U.S. 327 (1986)

Griswold v. Connecticut, 381 U.S. 489 (1965)

Hewitt,v.AHelms, 459 U.S. 460, 461 (1988) .................................

Kentucky Dep't. of Corr. v. Thompson, 490 U.S. 454, 463 (198)

10, 11, 16

Lopez v. Davis, 531 U.S. 230 (2001) ............................................

17, 18, 22

Moreno v. Ives, 842 Fed. Appx. 18 (9th Cir. 2020) ..................

Olim v. Wakinekona, 461 U.S. 238, 249 (1983) ...........................

10, 11, 16

Peyton v. Rowe, 391 U.S. 88 (1968) .............................................

23, 24

Rochin v. California, 342 U.S. 165 (1952) .................................

Sandin v. Conner, 515 U.S. 472, 477-78 (1995) .........................

. Setser v. United States, 566 U.S. 231 (2012) ...........................

Stanley v. Illinois, 405 U.S. 645 (1972) ...................................

Superintendent v. Hill, 472 U.S. 445, 454 (1985) ....................

Teed v. Thompson, Warden FCI_Allenwood Low, No. 22-CV-01568

2023 U.S. Dist. Lexis 18963 (M.D. Pa. February 3, 2023) .

6, 24

2022 U.S. Dist. Lexis 231928 (M.D. Pa. November 28, 2022)

6, 13

Teed v. Thompson, Warden FCI Allenwood Low

2023 U.S. App. Lexis 18020 (3rd Cir. 2023) ........................................

United States Dep't. of Agr. v. Murry, 413 U.S. 508, 512, 514 (1973)

United States v. Llewlyn, 879 F. 3d 1291, 1295 (11th Cir. 2018) ....

25, 26

-v-

TABLE OF AUTHORITIES (cont.)

PAGE

CASES

United States

v.Martin, 974 F. 3d 124, 130 (2nd Cir. 2020)

United States

v.Parker, 472 Fed. App'x 415 (7th Cir. 2012)

24, 25

United States v. Teed, No. 2:17-CR-0129 (W.D. Pa.) ............

United States v. Teed, No. 2:18-CR-0036.: (W.D. Pa.) ............

United States

v.Vaughn, 806 F. 3d 640 (1st Cir. 2015) ....

25, 26

United States

v.Wilson, 503 U.S. 329, 323 (1992) .............

Vlandis v_._ Kline, 412 U.S. 441 (1973) ..

Weinberger v. Salfi, 422 U.S. 749 (1975)

Wolff v. McDonnell, 418 U.S. 539 (1974)

' 9, 12, 24

CONSTITUTION AND STATUTES

U.S. Const., Amd. V ....

3, 9, 17

U.S. Const., Amd. XIV §1

3, 9, 17

U.S. Const., Amd. XIV §5

.. 3,

' Pub. L. No. 115-391

4, 6, 17

18 USC §1594(c) ....

4, 5, -20, 27

18 USC §2250 ..........

18 USC §3146 ..........

18 USC §3584(c)

4, 20, 21, 22, 23,.24, 25, 26, 28

18 USC §3621 et seq.

..................................... 4,

6, 17

18 USC §3621(e) ....

11, 18, 22

18 USC §3621(h)(2)-.

18 USC §3624 ..........

............4,' 8, 22, 24

18 USC §3624(b)

...............

18 USC §3624(g)

-vi-

4) 22, 25

8, 11, 21, 22, 27

TABLE OF AUTHORITIES (cont.)

STATUTES

PAGE

18 USC §3624(g)(l)-(ll) ....

18 USC §3632 .......................

4, 7, 9, 11, 17, 27

18 USC §3632(d) .............

18 USC §3632(d)(4)(A) ........

... 7, 18

18 USC §3632(d)(4)(C) ........

8, 11, 18

18 USC §3632(d)(4)(D) ........

10, 11, 12, 14, 16, 17, 20, 27, 28

18 USC §3632(d)(4)(D)(xxiii)

18 USC §3632(d)(4)(D)(xxvii)

18 USC §3635 .......................

4, 8, 18

18 USC §3635(3) ..................

18 USC §3635(6) ..........

28 USC §1254(1) ..................

28 USC §2241 .......................

RULES AND REGULATIONS

28 CFR §523.40 et seq.

28 CFR §523.41(d)(2) .

87 FR 2701-1

OTHER SOURCES

Department of Justice, "First Step Act Annual Report, April 2023 ....

National Review, "Fix the First Step Act and Keep Violent Criminals

Behind Bars" ............................................................

-vii-

IN THE

SUPREME COURT OF THE UNITED STATES

PETITION FOR WRIT OF CERTIORARI

Petitioner respectfully prays that a wit of certiorari issue to review the judgment below.

OPINIONS BELOW

lx) For cases from federal courts:

The opinion of the United States court of appeals appears at Appendix

the petition and is

jX] reported at 2023 U.S. App. LEXIS 18026

; or,

[ •] has been designated for publication but is not yet reported; or,

[ ] is unpublished.

The opinion of the United States district court appears at Appendix

the petition and is

F] reported at 2023 U.S. Dist. LEXIS 18963

; or,

[ ] has been designated for publication but is not yet reported; or,

[ ] is unpublished.

[ ] For cases from state courts:

The opinion of the highest state court to review the merits appears at

Appendix_____ to the petition and is

[ ] reported at

; or,.

[ ] has been designated for publication but is not yet reported; or,

[ ] is unpublished.

The opinion of the THIRD CTTCUIT COURT OF APPEALS REHEARING court

appears at Appendix__C__ to the petition and is

[ ] reported at

; or',

[ ] has been designated for publication but is not yet reported; or,

[ ] is unpublished.

-1-

JURISDICTION

[x] For cases from federal courts:

The date on which the United States Court of Appeals decided my case

was July 17, 2023

[ ] No petition for rehearing was timely filed in my case.

[x] A timely petition for rehearing was denied by the United States Court of

Appeals on the following date: October 4. 2023

, and a copy of the

order denying rehearing appears at Appendix c

[ ] An extension of time to file the petition for a writ of certiorari was granted

to and including _

(date) on

(date)

in Application No.

The jurisdiction of this Court is invoked under 28 U. S. C. § 1254(1).

[ ] For cases from state courts:

The date on which the highest state court decided my case was

A copy of that decision appears at Appendix______

[ ] A timely petition for rehearing was thereafter denied on the following date:

-------------------------------- , and a copy of the order denying rehearing

appears at Appendix

[ ] An extension of time to file the petition for a writ of certiorari was granted

to and including____

(date) on

(date) in

Application No. __ A

The jurisdiction of this Court is invoked under 28 U. S. C. § 1257(a).

-2-

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

U.S. Const., Arad. V

Criminal Actions - Provisions concerning -

Due Process of the Law and just compensation clauses.

No^person shall be held to answer for a capital, or otherwise

infamous crime, unless on a presentment or indictment of a Grand

Jury, except in cases arising in the land or naval forces, or in

the Militia, when in actual service in time of War or public

danger; nor shall any person be subject for the same ioffence to

be twice put in jeopardy of life or limb; nor shall be compelled

in any criminalcase to be a witness against himself, nor be

deprived of life, liberty, or property, without due process of law;

nor shall private property be taken for public use, without just

compensation.

See also Appendix 0.

offer incarcerated persons the opportunity to earn time credits

for participation in EBRR programs and PAs , those time credits

are applied toward an earlier release to pre-release custody

or transfer to supervised release.

FSA Time Credits are governed

by §3624(g),^ also see 18 USC §3632(d)(4)(C); Appendix D.

The FSA delineates multiple eligibility criteria, including

an extensive list of specific convictions that render a prisoner

ineligible to earn time credits.

18 USC §3632(d)(4)(D);

Appendix D.

^ 18 USC §3624 Release of a prisoner

(g) Pre-release custody or supervised release for risk and needs assessment

system participants.

(l) Eligible prisoners. This subsection applies in the case of a prisoner

(as such term is defined in section 3635 [18 USC §3635]) who ... .;

18 USC §3624(g)(l)-(ll). See Appendix for full statutory text.

-8-

REASONS FOR GRANTING THE PETITION

STATUTORILY MANDATED FSA TIME CREDITS ARE LIBERTY INTERESTS

THAT ARE CONSTITUTIONALLY PROTECTED

The enactment of the First Step Act statutorily-created a

constitutionally protected liberty interest in time credits

toward early release.

Congress explicitly used mandatory language

requiring specific substantive predicates, thus creating the

liberty interestin an accelerated release from custody.

use §3632.

The mandatory language protects and vests a liberty

interest protected through the Due Process Clause of the U.S.

Constitution Amd. V and Amd. XIV §1 and §5; Appendix D.

liberty interest arises from either the Due Process Clause or

statute, Hewitt v. Helms, 459 U.S. 460, 466 .(1988).

The Supreme Court in Wolff v. McDonnell, 418 U.S. 359 (1974),

held a person's liberty is equally protected by the due process

clause when the liberty interest is a statutory creation of

the state.

Wolff distinguished that the liberty interest

identified did not originate in the Constitution, but was created

by the law.

Further, Wolff held that the deprivation of a

liberty interest cannot occur with even the minimal safeguards

afforded by prisoners:by the Due Process Clause. YTo be sure, a

statutory provision can create a liberty interest in time credits

that shorten a prison sentence.

472, 477-78 (1995).

See Sandin v. Conner, 515 U.S.

Governmental decisions resulting in the

loss of an important liberty interest violates due process if

the decision is not supported with "some basis in fact."

-9-

Superintendent v. Hill, 472 U.S. 445, 454 (1985).

The FSA Time

Credits are a protected liberty interest that are substantially

burdened by the ineligibility provisions of 18 USC §3632(d)(4)(D)

see Appendix D.

As a federal inmate

Teed possesses a protected liberty

interest in FSA Time Credits.

The ineligibility provisions in

subparagraph (D) create an invasion of that protected liberty

interest, thus unconstitutional, deliberately depriving him

the expectation of the credit benefit toward an accelerated

release.

A denial of opportunity for an earlier release is

an encroachment of due process and an aggrandization of his

criminal conviction.

In analogous cases, liberty interests were created through

the use of mandatory language in a parole statute, see Board of

Pardons v. Allen,482 U.S. 369, 377 (1987); Kentucky Dept, of

Corrections v. Thompson, 490 U.S. 454, 463 (1989)

"specified

[that] substantive predicates" and "explicitly mandatory language"

creates a liberty interest; and Olim v. Wakinekona, 461 U.S. 238,

243 (1983), held that a statute that place substantive limitations

on "official discretion" creates a liberty interest.

The FSA

uses "explicitly mandatory language" delineating eligibility

and application of FSA Time Credits establishes specific predicates

that limits BOP discretionary authority.

The FSA's early release requirement is mandatory and a

non-discretionary duty, where the BOP "shall" apply the prisoner's

FSA Time Credits and "shall" transfer the prisoner to one of

-10-

the two forms of pre-release custody or supervised release.

§3624(g).

See

Had Congress intended the BOP discretion over FSA

Time Credit eligibility, it-:»would have specified that authority

to do so.

The FSA's eligibility is mandated in §3632 and §3624(g),

unlike the discretionary nature of the early release in §3621(e).^

The FSA's mandatory language in §3632(d)(4)(C) states "time

credits earned ... shall be applied toward time in pre-release

custody or transfer to supervised release," thus creating the

same type of liberty interest discussed in Allen, Thompson, and

Olim.

Thus, Teed's liberty interest must be preserved in. this

instant case.

Nothing in §3632 permits the BOP to determine

eligibility.

Denying access to a statutorily-created liberty interest

withoutr.ihdividualized'determinations has been declared a violation

of due process.

The FSA advances a legitimate government interest

in reducing recidivism and successfully reintergrating offenders

back into society, the exclusion provisions of §3632(d)(4)(D)

^ 18. USC §3621 Imprisonment of a convicted person

(e) Substance Abuse Treatment.

(2) Incentive for prisoner's successful completion of treatment program.

(B) Period of Custody. The period of a prisoner convicted of a non-violent

offense remains in custody after successfuly completing a treatment program

may be reduced by the Bureau of Prisons, but such a reduction may not be

more than.one year from the term the prisioner must otherwise serve. See

Appendix D for full statutory text.

-11-

do not advance that same interest.

The establishment of

eligibility based on specific offense convictions delivers an

EBRR system that is arbitrary.

The guarantee of substantive

due process protects against government power arbitrarily and

oppressively exercised.

Daniels v. Williams, 474 U.S. 374 (1986).

While due process protection in the substantive sense limits

what government may do in both legislative, see Griswold v.

Connecticut, 381 U.S. 479 (1965), and its executive capacities,

see also Rochin v. Calfornia, 342 U.S. 165 (1952), criteria

to identify what is fatally arbitrary differs depending on

whether its legislative or a specific act of a governmental

officer that is at issue.

"[T]he touchstone of due process is

protection of the individual against arbitrary action of the

government."

Wolff, 418 U.S. 519.

18 USC §3632(d) (4) (D)fisrBased :Upan,i False.: Premises

Thus Unconstitutional

The legislative history of the First Step Act reveals

conflicting purposes in the ability to earn Time Credits with

the exclusion by category.

Congress created the FSA Time Credits

to encourage inmates to participate in EBRR programs identified

through the individualized risk and needs assessments. 18 USC

§3632(d).

However

there is an exclusion provision; this

categorical exclusion creates a "second class" which this Court

held unconstitutional in Cleveland Board of Education v. LaFleur,

414 U.S. 632 (1974).

In the FSA, the Congressional exclusionary

intent .is clearly demonstrated in remarks by Senator T. Cotton

-12-

(R. AR), National Review, "Fix the First Step Act and Keep Violent

Criminals Behind Bars" (Dec. 17, 2018 available at www.cotton.senate.

gov) who stated, "... One of the best predictors of committing

a crime in the future is having committed a crime in the past."

The statement expresses clear intent that thos on the list of

exclusions are not worthy of

and are not capable of rehabilitation;

therefore should not be permitted to earn the same incentives

as those prisoners who are not on the list, thus incapable of

reducing recidivism.

Further, Senator Cotton's comments were heard and adopted in

both chambers of Congress, as illustrated in the Senate Judiciary

Committee's announcement that the exclusion was placed in the

First Step Act "to address concerns by certain parties" [like

Senator Cotton] (available at www.Judiciary.senate.gov).

In this

Revised Summary, it is clearly evident that the exclusion provision

was placed as a political appeasement to the assertions that

those convicted of a listed offense should not be incentivized in

an equal manner as they are not redeemable as a category; a premise

which is demonstratably false.

The use of the categorical exclusions

and ignoring empirical evidence is exactly what the Court declared

to be a violation of due process under the "irrebuttable presumtion

doctrine ."

Senator Cotton's assertions simply contravene the

government data.

The premise that certain irredeemable categories of prisoners

is demonstratably as in. Teed's own evidence-based PATTERN Score,

id. Teed, 2022 U.S. Dist. Lexis 231928.

-13-

The PATTERN Tool has

been determined to be "effective at distinguishing recidivists

and non-recidivists" according to the Department of Justice's

"First Step Act Annual Report, April 2023."

Teed's PATTERN Score

illustrates that if he were to receive the same individual evaluation

as other "eligible" prisoners, he would be earning the full 15

days for every 30 days toward an earlier release.

Since the

System's inception, the BOPOhas assessed Teed as a minimum

liklihood of reoffending under their "evidence-based" PATTERN

System.

This irrebuttable presumption underlying the exclusions

violates the original letter and spirit of "due process of the

law" in both the Fifth and Fourteenth Amendment.

See Appendix D.

Thus, the list of exclusions found in subsection (D) are

unconstitutional, compromising the Due Process and Equal Protection

Clauses.

The false presumption here is that any and all persons

convicted of any of the disqualifying offenses will equate to the

worst offenders.

This presents an unequal application and an

issue of irrebuttable presumption.

Further, many of the crimes

excluded categorically have lower recidivism rates than those

who are not excluded.

Comparing recidivism rates among various

categories listed in the Department of Justice's "First Step Act

Annual Report, April 2023" Data

Summary Tables excerpt included

in Appendix E, depicts recidivism rates by broad category.

Drug

crimes, constitutes the majority of prisoners, have a recidivism

rate of 12.8%.

However, Fraud crimes have a recidivism rate of

only 3.9%, and have been excluded by the statute from earning

-14-

the Time Credits, see §3632(d)(4)(D)(xxiii).

Appendix E further

illustrates that the longest sentences do not have a substantially

different rate of recidivism.

Among various length of sentences,

there is only an average recidivism difference of 2.9%.

It is

unreasonable to say longer sentences deter future crimes - a

"false presumption."

irrebuttable Presumptions are Unconstitutional When

Based Upon a False Premise

Court precedent invalidates many forms of irrebuttable

presumptions in statutes and policies that deny persons important:

interests emanated from a series of Court decisions.

Bell v. Burson

402 U.S. 535 (1971); Stanley v. Illinois, 405 U.S. 645 (1972);

Vlandis v. Kline

412 U.S. 441 (1973); United States Department of

Agriculture v. Murry, 413 U.S. 508 (1973); Cleveland Board of

Education v. LaFleur

414 U.S. 632 (1974).

Each of these cases

involved a statute containihg rules that denied a benefit or

placed a burden on all individuals possessing certain

characteristics .

The characteristic's the basic fact from which

a presumed fact "is not necessarily or universally true in fact,"

Vlandis, 412 U.S. at 452, then a statute's irrebuttable presumption

denies due process of the law.

The very name suggests both an

analysis grounded on formal logic and an examination of proper

application supporting the "irrebuttable presumption doctrine"

plays a role when private interests

are important and government

interests are based on false premises; "convenience alone is

insufficient to make valid what otherwise is a violation of due

-15-

*4.

process law," LaEleur

414 U.S. at 647.

The reason that is an unconstitutional practice is there

is no resonable opportunity to demonstrate that the premise is

false as applied to any idividual as opposed to the category

which is denied the benefit in question; in this instance,

access to the liberty interest granted by application of FSA

Time Credits.

See Allen, 482 U.S. 369,

Thompson, 490 U.S. 23-8;

Olim, 461 U.S. 238.

The facial constitutionality of the exclusion provisions

rest on 1) whether the premise that exclusions are based on is

ture or false; and 2) whether there is a reasonable opportunity

to rebut said presumptions in individual cases,

Accordingly,

the Court should endeavor to find the list of exclusions failing

the test for facial constitution on due process and equal

protection grounds, the specific list of exclusions as applied

to Teed and numerous other federal inmates fails for the same

reasons and in the same manner.

"[T]he Due Process Clause can be thought to interpose a

bar only if the statute manifests a patently arbitrary

classification, utterly lacking in rational justification."

Weinberger v. Salfi^5 422 U;S. 749 (1975).

Teed challenges the

deprivation FSA Time Credits benefit based on the government's

failure to rationally justify and advance a legitimate government

interest in reducing recidivism by including the list of exclusions

identified in §3632(d)(4)(D); the ineligibility provisions

violate substantive due process by adopting arbitrary classifications

-16-

as an administrative device.

The irrebuttable presumption must be analyzed calling into

question not the...adequacy of the procedures, such as multiple

sentence aggregation, but the classification of those ineligible.

The relationship between the list of exclusions and the policy

that the classification serves is inadequate.

Such a statutory

classification is not consistent with equal protection under the

Fourteenth Amendment, U.S. Const.,. Amd. XIV.§1, if it is rationally

based and free from invidious discrimination.

A classification

which meets such a test is perforce consistent with the due

process requirement of the Fifth Amendment, U.S. Const.

Weinberger, 422 U.S. 749.

Amd. V,

Section §3632(d)(4)(D) is not

consistent with either the Fifth or Fourteenth Amendments. See

Appendix D.

The exclusion provisions fail to meet a rational

legislative objective, creating an invasion of a protected

liberty interest and a denial of fundamental fairness.and

contrary to the FSA goals.

C. The FSA Evidence-Based Recidivism Reduction Program

Time Credits Differ from Other Early Release Programs

The FSA, Pub. L. No. 115-391, (amending 18 USC §3621,et seq.),

uses substantive predicates to improve criminal justice outcomes

reducing recidivism through individualized recidivism risk

assessments and assigning appropriate EBRR programs for those

individualized risk and needs.

18 USC §3632.

The compulsory

Time Credit mandate is significantly different from the BOP

discretionary early release programs examined in Lopez v. Davis

-17-

531 U.S. 230 (2001).

The Davis Court ruled categorical denial

of early release to a prisoner was within the discretion of the

BOP under 18 USC §3621(e).

The BOP exercises total authority

and discretion in rehabilitative programs, such as the Residential

Drug Abuse Program ("RDAP"), a defined sentence reducing incentive.

The Davis Court further held that early release eligibility was

a grant of discretion and authority to the BOP under §3621(e)

to reduce sentences based on Congress' use of the permissive

word "may" differering from the explicit mandatory language

requiring specific substantive predicates in the FSA.

The FSA mandates incentives for prisoners to earn FSA Time

Credits for EBRR programs and PAs.

18 USC §3632(d)(4)(A) and

18 USC §3621(h)(2), see Appendix D.

EBRR programs are designed

to help prisoners succeed in;their communities upon release

from prison.

EBRR programs have shown by empirical evidence to

reduce recidivism or based on research indicating they are likely

to be effective in reducing recidivism.

Id. §3635.

Inmates

completing EBRR programs and PAs earn FSA Time Credits that "shall"

be applied toward time in pre-release custody or supervised

release at an earlier date.

Id. '§3632(dn'4)(C):

"Congress' use

of verb tense is significant in construing statutes."

States v. Wilson

United

503 U.S. 329, 333 (1992).

The FSA does not afford the BOP the grant of authority and

discretion that it has in §3621(e) early release programs.

Congress

purposely did not give the BOP the authority to determine eligibility

abd deliberately refrained from granting that authority.

-18-

The

FSA dictates preclude language allowing the BOP to determine

eligibility, limiting their scope of discretion and instructing

the BOP that they "shall" apply FSA Time Credits based on

successful completion of EBRR programs and individualized

assessments.

-19-

REASONS FOR GRANTING THE PETITION

II.

FIRST STEP ACT TIME CREDIT ELIGIBILITY IS MANDATED

BY STATUTE

FSA Time Cr edit Eligibili ty is Offense Sped fic

Congress directly addressed the issue of FSA Time Credit

eligibility as offense specific.

The statutory dictates clearly

and deliberately preclude interpretative language granting the

BOP discretionary authority over FSA Time Credit eligibility.

Section 3632(d)(4)(D) specifically states:

(D) Ineligible persons. A prisoner is ineligible to receive the time

credits under this paragraph if the prisoner is serving a sentence

for a conviction under any of the following provisions of the law.

The FSA clearly does not permit the BOP to determine what' offense

constitutes FSA eligibility.

The plain language of the FSA entitles

Teed to earn Time Credits during his §1594(c) sentence of conviction.

Provision §3632(d)(4)(D)(xxvii) is plain and its placement clearly

indicates congressional intent of Teed's entitlement to FSA Time

Credits.

Administrative Aggregation does not Permit the BOP to

Redefine or Narrow FSA Time Credit Eligibility

Sentences are a function of the judicial process, imposed

for specific offenses; Congress has determined, inter alia, that

FSA eligibility is offense specific.

The BOP aggregates multiple

sentences "for administrative purposes as a single, aggregate

term of imprisonment," according to their responsibility under

§3584(c).

Section 3584(c) merely instructs the BOP in administering

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sentences.

Administrative aggregation of multiple sentences

is purposed for calculating time served; the FSA dictates

directly affect that calculation and the prisoner's statutory

release date.under §3624(g).

Section 3S84(c)^ does not speak to charge allocation

nor

replace the sentencing court's charge allocation as reflected

in the sentencing orders.

Nothing in §3584(c) suggests that the

statute says anything about the relationship between the aggregate

term of imprisonment and each constituent offense that produced

it.

The BOP fulfills its statutory duty under §3584(c), aggregating

Teed's total term of imprisonment which totals 138 months.

However, the BOP's aggregation treats all Teed's sentences as a

single undifferentiated term to be served and administers the

term of imprisonment as equally and fully allocable for all three

of his sentences when determining his FSA Time Credit eligibility.

This view is certainly not supported in the language of §3584(c).

The BOP's duty under §3584(c) does not replace the sentencing

court's charge allocations reflected in the sentencing orders.

There is no relationship between the aggregate term of imprisonment

18 USC 3584-Cc) Treatment of multiple sentence as aggregate.

Multiple terms of imprisonment ordered to run consecutively or concurrently

shall be treated for administrative purposes as a single, aggregate term of

imprisonment. See also Appendix D.

-21-

and each constituent offense that produced it.

The BOP must

aggregate the term of imprisonment in determining a prisoner's

statutory release date under §3624(b)

and §3624(g), both are

legislative mandated sentence reductions provided prisoners have

met the criteria stipulated in the provisions of the statute.

The BOP uses':.’the'aggregated term of imprisonment when determining

a discretionary early sentence reduction under §3621(e).

Sentencing reductions under §3621(e) while authorized by statute,

are discretionary and in a sense 'administrative1 in nature, the

Davis Court ruled that the early release eligibility was a grant

of discretion and authorization to the BOP under §3621(e).

Nothing

in Davis, 531 U.S. 230, supports a view that the sort of charge

allocation issue here is an 'administrative1 .determination within

the meaning of §3584(c), in fact Davis does not even mention

§3584(c).

The FSA statute carries plain meaning

the duty of the BOP

is to follow the mandate; it is not discretionary,

The BOP has

determined Teed's FSA Time Credit ineligibility based on the

8 18 USC §3624 Release of a prisoner

(b) Credit toward service of sentence for satisfactory behavior.

(1) Subject to paragraph (2), a prisoner who is serving a term of imprisonment

of more than 1 year[,] other than a term of imprisonment for the duration of the

prisoner's life, may receive credit toward the service of the prisoner's

sentence up to 54 days for each year of the prisoner's sentence imposed by the

court, subject to the determination by the Bureau of Prisons that, during that

year, the prisoner has displayed exemplary compliance with institutional

disciplinary regulations. Subject to paragraph (2), if the Bureau determined

that during that year, the prisoner shall receive the lesser credit as the

Bureau determines appropriate.

In awarding credit under this section, the

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aggregation as a single, undifferentiated term of imprisonment

that is equally and fully allocable to each constituent offense.

There is no relationship that supports the view in §3584(c) and

in doing so, the BOP redefines and narrows FSA Time Credit

eligibility.

The BOP commits an error of law concluding that its

duty under §3584(c) is to treat an aggregated term of imprisonment

as fully applicable to each sentence of conviction.

BOP Policy Creates Unnecessary and Conflicting Split

in Circuit Court of Appeals

The significant issue of substance here, is not the BOP's

duty under §3584(c), but how the BOP treats that result of that

duty creating serious conflicting views among the various Circuit

Courts.

The Third and Ninth Circuits view multiple sentence

aggregation under §3584(c) as a continuous custody rationale,

citing the Supreme Court's ruling ing Peyton v. Rowe, 391 U.S.

54 (1968) (holding that a prisoner incarcerated on multiple .

sentencesiis

for the puproses of determining whether he has

standing relief, is in custody on all sentences).

Peyton did

Bureau shall consider whether the prisoner , during the relevant period has

earned, or is making satisfactory progress toward earning, a high school diploma

or an equivalent degree. Credit that has not been earned may not be granted.

Subject to paragraph (2), for the last year or portion of s year of the term

of imprisonment shall be prorated and credited within the last six weeks of

the sentence.

(2) Notwithstanding any other law, credit awarded under this subsection after

the date of the enactment of the Prison Litigation Reform Act shall vest on the

date the prisoner is released from custody. See Appendix D.

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not rule that an aggregated term of imprisonment is equally

allocable to each count on all purposes.

Moreno v. Ivest 3 842

Fed. Appx. 18 (9th Cir. 2020)(disent J. Collins).

Nothing in

Peyton supports the issue of charge allocation within the meaning

of §3584(c), a statute enacted 16 years after Peyton.

The Third and Ninth Circuits reason that "[t]he BOP was

permitted to aggregate [petitioner's] otherwise consecutive ■■

sentences into a single unit for purely administrative purposes,

such as

at issue here - calculating GTC under §3624," id. Teed,

Lexis 18963.

However, this reasoning is incorrect because FSA

Time Credits are distinctly different han GTCs; the District

Court's ruling which the Court of Appeals affirmed fails to

recognize this and the BOP's actions contravene with the dictates

of §3632

"a liberty interest created by statute ... protected

by due process."

Wolff, 418 U.S. at 557.

The Third Circuit

ruling deepens the divide with the other circuits and further

entrenches the circuit split on this issue.

Such a reading of

§3584(c) that regularly attributes each individual offense of

conviction a total sentence that may exceed statutory maximums

for a particular' offense produces a legally flawed result that

cannot be correct.

The First, Second

Seventh and Eleventh Circuits view and

have ruled multiple sentence aggregation under §3584(c) is_for

administrative purposes, but remains "distinct terms of

imprisonment,"

(7th Cir. 2012).

United States v. Parker, 472 Fed. App'x 417

Consecutive sentences shall be aggregated by the

-24-

BOP for administrative purposes, but remains "distinct terms of

imprisonment" imposed for separate convictions, Parker.

The

Parker Court, reasoned that where multiple independent convictions,

committed at separate times and' sentenced separately at different

in separate proceedings remain distinct terms for separate

convictions under admininstrative aggregation as in §3584(c) .

The First Circuit in United States v. Vaughn

806 F. 3d 643-

644 (1st Cir. 2015) concurred with the Seventh Circuit's reasoning,

pointing out that "extending:. §3584(c) would essentially rewrite

the statute to extend aggregation to all purposes."

Vaughn.

Assigning portions of a total term of incarceration to specific

offenses is not an "administrative purpose," it is a judicial

function.

cf United States v. Llewlyn, 879 F. 3d 1291, 1295

(llth Cir. 2018) (rejecting the view that, §3584(c) replaces

separate consecutive charges with aggregate terms; §3584(c) “

"instead refers to the Bureau of Prisons' administrative duties,

such as computing inmates'credit for time served.").

The clear

importance of the statute is the aggregation is to be treated as

single, aggregate term for "administrative purpose[]," only

such as calculating-good time credits under §3624(b).

The.

Eleventh Circuit reasoned that consecutive sentences have been

aggregated by the BOP for administrative purposes, nevertheless,

remain distinct terms imposed for separate convictions.

sentencing court's "judicial decisions ... do not constitute

^administrative purpose

and to do so would essentially rewrite

the statute to extend aggregation to all purposes."

-25-

Llewlyn

at 1295 (quoting Vaughn, 806 F. 3d at 644).

confirms

Llewlyn clearly

nothing in §3584(c) supports the charge allocation

that the BOP extends through aggregation with Teed.

The Second Circuit in United States v. Martin, 974 F. 3d

124, 130 (2nd Cir. 2020)

determined FSA Time Credits can be

earned within an aggregated term of imprisonment as long as that

particular sentence is currently being served and should be

treated as separate under the FSA because the reduction in one

component of the sentence can result in a credit without the

need to separate it into its respective segments, resulting in

an earlier release from custody,

The significance of Martin

is apparent, although the Court denied Martin his FSA Time Credits,

the denial was based not on the aggregated term of imprisonment,

but because Martin's eligible FSA sentence of conviction had

already been served.

Martin teaches us that FSA Time Credits

can be earned on eligible sentences within an aggregated term

of imprisonment as long as the sentence is still being served.

The imposition of a sentence is is not an administrative purpose

under §3584(c)

and to construe as such warps the structure of

that Chapter in the United States Code.

Martin, 974 F. 3d 124.

Treating Teed's aggregated term of imprisonment as being

equally and fully allocable to each constituent offense leads to

a result that is absurd; where a prisoner serving a 138 a month

aggregate term of imprisonment, with 120 month sentence or 87%

of the term is FSA Time Credit eligible, but since a consecutive

18 month sentence or 13% of the aggregate term is ineligible,

-26-

the entire aggregate term is eligible.

mandated sentence reduction.

The FSA is a legislative

The BOP's actions deprive Teed

of FSA Time Credits, violating due process of the law.

FSA Time

Credits earned through EBRR programs and PAs are mandated by

Congress to be applied toward an earlier release from custody.

18 USG §3624(g) and the has failed to follow the mandate.

BOP Policy Does Not Mirror the FSA Statute

The text of the FSA is explicitly clear and precise in

subsection (D) as "serving' a sentence" for one of the enumerated

convictions.

Teed's §1594(c) conviction is an eligible offense,

clearly as serving a "sentence of conviction."

The BOP details

procedures for implementing the FSA Time Credits, codified in

28 CFR §523.40 et seq. (First Step Act Time Credits

87 FR 2701-1),9

"[] ... the inmate is serving a term of imprisonment for an

offense specified in 18 USC §3632(d)(4)(D), the inmate is not

eligible to earn Time Credit." 28 CFR §523.41(d)(2); see also.

Appendix D.

The BOP has determined Teed's FSA Time Credit

ineligibility by aggregating all three of his sentences,

interpreting them as fully applicable throughout the aggregated

term of imprisonment.

The BOP's interpretation contravenes with

the mandate of §3632

that "serving a sentence" of conviction,

as opposed to a "term of imprisonment" clearly indicates that

the BOP Policy does not mirror the statute committing an error

of law in carrying out their responsibilities under the FSA

mandate.

The specific use of words is imperative when construing

9 Full text of 28 CFR §523.40 et seq. is located in Appendix D.

-27-

statutes, the Court must give "effect to every clause and word

of a statute," Setser v. United States, 566 U.S. 231 (2012).

CONCLUSION

The ultimate goal of incarceration is the transformation of

a flawed individual who was convicted and received just punishment,

into a productive contributing member of society who will not

recidivate.

The most important tenet of the First Step Act

mandate is reducing recidivism with evidence-based recidivism

reduction programs through imperatives such as "shall" and

"mandate."

The First Step Act statutorily-created liberty interests

in the form of specific guarantees of time credits toward an

earlier release from custody.

The deprivation of these liberty

interests, violate constitutional rights consistent with the

Fifth and Fourteenth Amendments, a departure from traditional

constitutional principles.

The ineligibility provisions of

18 USC §3632(d)(4)(D) deliberately exclude the expectation of

benefit--of

time credits for an earlier release.

The contemporaneous

construction of the ineligibility provisions present a compelling

importance of fundamental rights enshrined in the Constitution.

In Teed's case, the BOP has exceeded authority and made

an error of law by impermissably redefining and narrowing FSA

Time Credit eligibility contrary to the statutory mandate.

The

BOP's application of aggregation under §3584(c) obfuscates and

contravenes the pure and simple Congressional intent by treating

multiple sentences as equally and fully allocable to each

-28-

■

constituent offense.

The BOP's actions deprive Teed his liberty

interest and entitlement in FSA Time Credits denying him the

opportunity to earn and apply time credits explicitly mandated

by Congress violating his constitutional rights.

This Petition for Writ of Certiorari should be granted.

Date :

December 4, 2023

Respectfully submitted,

Daniel Joseph Teed, pro se

Reg. No. 38472-068

FCI Loretto

P.0. Box 1000

Cresson.5 PA

-29-

16630

No.

IN THE SUPREME COURT OF THE UNITED STATES

DANIEL JOSEPH TEED

PETITIONER

VS.

THOMPSON, WARDEN FCI ALLENWOOD LOW

RESPONDENT

ON PETITION FOR WRIT OF CERTIORARI

TO THE THIRD CIRCUIT COURT OF APPEALS

;

CERTIFICATE OF COMPLIANCE

SUPREME COURT RULE 33.2(b)

I, Daniel Joseph Teed

pro se and unrepresented: party in

the above-captioned case certify that the total number of pages

in the PETITION FOR WRIT OF CERTIORARI to the THIRD CIRCUIT

COURT OF APPEALS, including footnotes complies with the page

limits

of Supreme Court Rule 33.2(b).

The exclusions specified

in subparagraph of Rule 33.1(d) have been applied in the page

limit for this document.

The total word limit in this document

is exempt of Rule 33.1(g).

Date:

_December 4, 2023

Daniel Joseph Teed, pro se

Reg. No. 38472-068

-30-

■V

No.

IN THE SUPREME COURT OF THE UNITED STATES

DANIEL JOSEPH TEED, PETITIONER

VS.

THOMPSON, WARDEN FCI ALLENWOOD LOW.5 RESPONDENT

PROOF OF SERVICE

PETITION FOR WRIT OF CERTIORARI

I,-"Daniel Joseph. Teed, pro se and unrepresented, do swear and declare

pursuant to 28 USC §1746 as amended, under penalty of perjury that the foregoing

is true and correct, that on this date

December 4 , 2023, as required

by Spureme Court Rule 29. I have served the enclosed Petition for Writ

of Certiorari to the Third Circuit Court of Appeals with accompanying Appendix

on each party to the above preceeding or that party's counsel, and on every

person required to be served, by depositing an envelope containg the above

documents with institutional staff at the Federal Correctional Institution

Loretto at Cresson, Pennsylvania. The documents were for the United States

Mail properly addressed to each of them with prepaid certified first class

postage.

The name of those served are as follows:

* Clerk, United States Supreme Court, 1 1st St. N.E. Washington, DC 20543

* Solicitor General;bf.the United States, Department of Justice,

950 Pennsylvania Ave. 3 N.W., Room 5614, Washington, DC 20530-0001

I am a federal inmate incercerated with the Federal Bureau of Prisons and

unable to comply with the electronic transmission requirements of Supreme

Court Rule 29.3.

Executed on

December 4 , 2023

Daniel:Joseph'-Teed, pro se

Reg. No. 38472-068

-31-

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.