Carrillo Narcisco v. FCI Berlin, Warden

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Narcisco Gomez-Carrillo
v. 	Case No. 23-cv-177-SM
Warden, FCI Berlin
REPORT AND RECOMMENDATION
Petitioner, Narcisco Gomez-Carrillo, a prisoner at the Federal
Correctional Institution in Berlin, New Hampshire (“FCI Berlin”),
has filed a petition for a writ of habeas corpus under 28 U.S.C.
§ 2241 (Doc. No. 1). 	The petition is before this court for
preliminary review. 	See 28 U.S.C. § 2243; Rule 4 of the Rules
Governing Section 2254 Cases (“§ 2254 Rules”); LR 4.3(d)(4)(A); see
also § 2254 Rule 1(b) (§ 2254 Rules may apply to § 2241 petitions).
The petitioner claims that the federal Bureau of Prisons (“BOP”) has
refused to apply the time credits he has earned under the First Step
Act (“FSA”) to his sentence to shorten the length of time he must
remain in prison prior to being released to serve the term of
supervised release imposed as part of his sentence.
Preliminary Review Standard
Pursuant to § 2254 Rule 4, a judge is required to examine a
petition for habeas relief and, if “it plainly appears from the
petition and any attached exhibits that the petitioner is not
entitled to relief in the district court, the judge must dismiss the
petition.” 	Id. 	“Federal courts are authorized to dismiss summarily
Case 1:23-cv-00177-SM Document 2 Filed 04/13/23 Page 1 of 5

2
any habeas petition that appears legally insufficient on its face.”
McFarland v. Scott, 512 U.S. 849, 856 (1994). 	The court construes
[Petitioner]’s pleadings liberally, considering his pro se status.
See Dutil v. Murphy, 550 F.3d 154, 158 (1st Cir. 2008).
Background
The petitioner asserts that, on May 19, 2021, he was sentenced
to a term of imprisonment, followed by a term of supervised release.
He is currently serving the incarcerated portion of his sentence at
FCI Berlin. 	According to Mr. Gomez-Carrillo’s petition, he has
earned 190 days of FSA time credits. 	Mr. Gomez-Carrillo states that
the BOP has calculated his release date as August 9, 2032, but that
with his FSA time credits applied, his release date should be
January 30, 2032.1 	Mr. Gomez-Carrillo claims that the BOP has failed
to adjust his anticipated release date to account for the 190 days
of FSA time credits he has earned, and he asks the Court to “modify
Petitioner’s date of release” to reflect those time credits.
Discussion
The FSA directs that time credits a federal prisoner earns
“shall be applied toward time in prerelease custody or supervised
1 The online BOP Inmate Locator identifies September 5, 2032 as
Mr. Gomez-Carrillo’s anticipated release date. 	The difference
between August 9, 2032 and September 5, 2032 does not affect the
Court’s recommendation regarding the appropriate disposition of this
matter.
Case 1:23-cv-00177-SM Document 2 Filed 04/13/23 Page 2 of 5

3
release.” 	18 U.S.C. § 3632(d)(4)(C). 	The FSA establishes criteria
a prisoner must meet before he is eligible to have his time credits
applied to his sentence including, among other things, that the
prisoner has “earned time credits . . . in an amount that is equal
to the remainder of [his] imposed term of imprisonment.” 	18 U.S.C.
§ 3624(g)(1)(A). 	Accordingly, the FSA “provides that, while time
credits may be accumulated each month, an inmate is not eligible to
have those credits applied until the inmate has accumulated ‘earned
time credits . . . in an amount that is equal to the remainder of
the prisoner’s imposed term of imprisonment.’” 	Szanyi v. Pullen,
No. 3:22-cv-1253 (KAD), 2023 U.S. Dist. LEXIS 14970, at *6, 2023 WL
1108469, at *2 (D. Conn. Jan. 30, 2023) (quoting § 3624(g)(1)(A))
(other citations omitted); see also Mills v. Starr, No. 21-cv-1335
(SRN/DTS), 2023 U.S. Dist. LEXIS 51190, at *4, 2023 WL 2645030, at
*2 (D. Minn. Mar. 27, 2023) (BOP may apply time credits “only when
the number of credits equals the remainder of the prisoner’s
sentence”); Adkins v. Engleman, No. CV 22-1988, 2022 U.S. Dist.
LEXIS 196100, at *4, 2022 WL 14966123, at *2 (C.D. Cal. Sept. 8,
2022) (noting that “federal courts around the country” have
interpreted § 3624(g)(1)(A) to mean that the BOP may only apply time
credits once the prisoner has earned enough credits to equal the
remainder of his or her sentence), R&R approved, 2022 U.S. Dist.
LEXIS 195279, at *1, 2022 WL 15116425, at *1 (C.D. Cal. Oct. 24,
2022).
Case 1:23-cv-00177-SM Document 2 Filed 04/13/23 Page 3 of 5

4
There is a practical purpose for allowing application of earned
time credits only when those credits equal the length of the
remainder of the prisoner’s term of imprisonment. 	Time credits,
like good conduct time, may be lost for misconduct or disciplinary
infractions. 	See Shults v. Birkholz, No. 2:22-cv-07273-JAK (MAR),
2023 U.S. Dist. LEXIS 33494, at *4, 2023 WL 2339888, at *2 (C.D.
Cal. Feb. 27, 2023) (citation omitted), R&R approved, 2023 U.S.
Dist. LEXIS 33563, at *2, 2023 WL 2266105, at *1 (C.D. Cal. Feb. 28,
2023).
Because the petitioner has more than nine years remaining in
his sentence, far in excess of the 190 days he asserts he has
earned, § 3624(g)(1)(A) precludes the application of those time
credits to his sentence at this time. 	Accordingly, the District
Judge should dismiss Mr. Gomez-Carrillo’s petition (Doc. No. 1) as
premature, without prejudice to his ability to bring a new petition
if, in the future, the BOP fails to properly apply his earned FSA
time credits to his sentence when those credits equal the time
remaining in his sentence.
Conclusion
For the foregoing reasons, the district judge should dismiss
Mr. Gomez-Carrillo’s petition for a writ of habeas corpus (Doc. No.
1) without prejudice. 	Any objections to this Report and
Recommendation must be filed within fourteen days of receipt of this
notice. 	The objection period may be extended upon motion. 	Failure
Case 1:23-cv-00177-SM Document 2 Filed 04/13/23 Page 4 of 5

5
to file any objection within the specified time waives the right to
appeal the district court’s Order. 	See Santos-Santos v. Torres-
Centeno, 842 F.3d 163, 168 (1st Cir. 2016). 	Only those issues
raised in the written objections “‘are subject to review in the
district court,’” and any issues “‘not preserved by such objection
are precluded on appeal.’” 	Id. (citations omitted).
______________________________
Andrea K. Johnstone
United States Magistrate Judge
April 13, 2023
cc: 	Narcisco Gomez-Carrillo, pro se
Case 1:23-cv-00177-SM Document 2 Filed 04/13/23 Page 5 of 5