Tomlinson v. Healy

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
MARK TOMLINSON,
Petitioner,
v.
WARDEN IAN M. HEALY,
Respondent.
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Case No. 4:24-cv-02151
Judge J. Philip Calabrese
Magistrate Judge
Jennifer Dowdell Armstrong
OPINION AND ORDER
Petitioner Mark Tomlinson, a prisoner in federal custody, filed a petition for a
writ of habeas corpus without a lawyer pursuant to 28 U.S.C. § 2241. 	He seeks
transfer to home confinement or a residential reentry center pursuant to the First
Step Act of 2018 and claims that the Bureau of Prisons has improperly denied this
transfer based on an immigration detainer. 	The Magistrate Judge issued a report
and recommendation that the Court dismiss and/or deny the petition (ECF No. 10),
to which Mr. Tomlinson objected (ECF No. 11). For the reasons that follow, the Court
OVERRULES the objections, ADOPTS the recommendation, and DISMISSES the
petition.
STATEMENT OF THE CASE
A. 	Factual and Procedural Background
Since 1986, Petitioner Mark Tomlinson has resided in the United States as a
legal permanent resident. 	(ECF No. 10, PageID #127.) 	On April 14, 2015, he was
sentenced to 192 months in federal prison, followed by 5 years of supervision for
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possession of marijuana and MDMA (ecstasy) with intent to distribute. (ECF No. 7-1,
¶ 3, PageID #77–78.) 	Since March 2022, he has served his sentence at the Federal
Correctional Institution at Elkton in Lisbon, Ohio. (Id., ¶ 5, PageID #78.)
During 	Mr. 	Tomlinson’s 	incarceration, 	he 	took 	advantage 	of 	recidivism-
prevention programming and incentives available to federal prisoners under the First
Step Act, and thereby earned time credits that may be applied to transfer to a
residential reentry center placement, home confinement or supervised release if he is
otherwise 	eligible. 	(ECF 	No. 	7-2, 	¶ 	11, 	PageID 	#98.) 	As 	of 	August 	2025,
Mr. Tomlinson had accumulated 365 days of credit toward early supervised release
and 640 days of credit toward placement in pre-release custody. (Id.) As a category,
prerelease custody includes such arrangements as home confinement or community
placement at residential reentry center. 18 U.S.C. § 3624(c).
On March 28, 2020, the Department of Homeland Security notified the Bureau
of Prisons that Mr. Tomlinson was the subject of an immigration detainer due to
information that he “either lacks immigration status or notwithstanding such status
is removable under U.S. Immigration law.” (ECF No. 1-8, PageID #28.) Though he
is not a citizen of the United States, Mr. Tomlinson has been a lawful resident of the
country since 1986. 	(ECF No. 1-7, PageID #27; see also ECF No. 1-1, PageID #10.)
The 	immigration 	detainer reflects 	that an 	investigation 	has been 	initiated to
determine whether Mr. Tomlinson is subject to removal from the United States. (ECF
No. 7-2, ¶ 9, PageID #97.)
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Until recently, Mr. Tomlinson’s immigration status and detainer bore no
obvious conflict with his ongoing accumulation of time credits under the First Step
Act. (See ECF No. 1-8, PageID #29.) On April 8, 2025, however, the Bureau of Prisons
issued 	a 	new 	policy 	memorandum 	concerning 	inmates 	like 	Petitioner 	with
immigration detainers but without a final order of deportation. (ECF No. 7-2, ¶ 12,
PageID #98; ECF No. 10, PageID #130 & n.1.) Under this new policy, the Bureau of
Prisons applies up to 365 days of time credits toward early release, but any remaining
time credits cannot be used for transfer to prerelease custody. (ECF No. 10, PageID
#130.) In short, inmates who are not citizens are no longer eligible for placement in
prerelease custody. Once placed in a halfway house or other community placement,
a person with a detainer is subject to arrest by immigration authorities, resulting in
at least a technical escape and interruption of his federal sentence. 	(ECF No. 1-8,
PageID #29.)
Mr. Tomlinson applied 365 days of time credits toward early release, and he
now seeks a writ of habeas corpus to apply his remaining credits toward prerelease
custody. 	(ECF No. 1, PageID #10.) 	Respondent acknowledges that Petitioner
exhausted all administrative remedies. (Doc 7-1, PageID #68.) However, Respondent
contends that the petition should be dismissed because the relief that Mr. Tomlinson
seeks is unavailable in habeas corpus and because the First Step Act allows the
Bureau of Prisons to enact the policy in question. (ECF No. 7, PageID #69-71.)
B. 	Report and Recommendation
The Magistrate Judge recommends that Mr. Tomlinson be allowed to proceed
under habeas corpus but that his claim be denied on the merits. 	Specifically, the
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Magistrate Judge found that the Bureau of Prisons “has sole discretion to determine
whether a prisoner should be placed in [a residential reentry center] or home
confinement, even after enactment of the [First Step Act].” 	(ECF No. 10, PageID
#133; see also id., PageID #134.)
C. 	Objections
Petitioner offers three objections to the report and recommendation. First, he
asserts that his desire to be placed in prerelease custody centers on a liberty interest
rather than a “place of confinement” that falls within the purview of the Bureau of
Prisons. (ECF No. 11, PageID #138-40.) Second, he suggests that any precedents on
which the Magistrate Judge relies to determine the breadth of discretion the Bureau
of Prisons enjoys have no application because they predate the Supreme Court’s
decision in Loper Bright Enterprises v. Raimondo, 603 U.S. 396 (2024), which ended
judicial deference to agencies’ statutory interpretations. 	(Id., at PageID #140–41.)
Third, Petitioner argues that the “history and specifics of this particular situation
favor relief.” (ECF No. 11, PageID #141.)
ANALYSIS
After the report and recommendation is filed, if a party objects within the
allotted time, the district court is required to “make a de novo determination of those
portions of the report or specified proposed findings or recommendations to which
objection is made.” 	28 U.S.C. § 636(b)(1)(C); see also Fed R. Civ. P. 72(b). 	Upon
review, the court “may accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). Importantly,
the court's job is not to conduct a free-wheeling examination of the entire report and
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recommendation, but only to address any specific objections that a party has
advanced to some identified portion of it. 	Accordingly, it is the Court's task in this
matter to review the Magistrate Judge's report and recommendation de novo, based
on the specific objections that Petitioner raises.
I. 	The First Step Act
The First Step Act of 2018 reauthorized and expanded a series of federal prison
reforms aimed at reducing recidivism and facilitating a prisoner’s reentry into society
through transitional services and behavioral incentive structures. See First Step Act
of 2018, Pub. L. No. 115-391, 132 Stat. 5194; 34 U.S.C. § 60501. 	In particular, the
First Step Act “established a system of time credits and provided eligible inmates the
opportunity to earn those credits for participating in evidence-based recidivism
reduction programming and productive activities.” Vallares v. Ray, 130 F.4th 74, 79
(4th Cir. 2025). 	This system “operates separately from other pre-existing ‘credit’
systems, including the credits prisoners earn for good behavior during incarceration.”
Komando v. Luna, No. 22-cv-425, 2023, WL 310580, at *3 (D.N.H. 2023).
Under the First Step Act, an eligible prisoner “shall earn 10 days of time credits
for every 30 days of successful participation in evidence-based recidivism reduction
programming or productive activities.” 	18 U.S.C. § 3632(d)(4)(A)(i). 	Once earned,
credits under the First Step Act “shall be applied toward time in prerelease custody
or supervised release.” 	Id. § 3632(d)(4)(C). 	However, no more than twelve months’
worth of these credit may be applied toward early transfer into supervised release.
Id. § 3624(g)(3). A prisoner is ineligible to participate if he is serving a sentence for
a disqualifying crime or if he is “the subject of a final order of removal under any
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provision of the immigration laws.” 	Id. §§ 3632(d)(4)(D) & (E)(i). 	Mr. Tomlinson’s
immigration 	detainer 	does 	not 	amount 	to 	a 	disqualifying 	“final 	order 	of
removal” under Id. § 3632(d)(4)(E)(i), and Respondent does not suggest otherwise.
The Bureau of Prisons “shall transfer eligible prisoners, as determined under section
3624(g), into prerelease custody or supervised release.” Id. § 3632(d)(4)(C).
Here, notwithstanding the statute’s use of the term “shall,” id, Respondent
declined to apply credits under the Act to Mr. Tomlinson. 	As the Magistrate Judge
notes (ECF No. 10, PageID #129), the Bureau of Prisons has taken different
approaches to this issue over time. 	For their part, federal district courts have also
taken competing positions on the issue whether a petitioner, such as Mr. Tomlinson,
is entitled to credits toward prerelease custody or whether the Bureau of Prisons
retains discretion to determine the matter. 	“A number of courts have interpreted
[Section] 3632(d)(4)(C) to mandate that all earned time credits must be applied either
toward early supervised release or toward prerelease custody because there is no
statutory cap on time credits applied to prerelease custody. In contrast, other courts
have found that the application of excess earned time credits and such placement in
pre-release is in the discretion of the [Bureau of Prisons].” 	Duroseau v. Noem, No.
3:25-cv-02041, 2025 WL 3172106, at *5 (M.D. Pa. 2025) (citations omitted). 	The
Supreme Court and the Sixth Circuit have yet to speak to the issue.
II. 	Jurisdiction
The Magistrate Judge assumed that Mr. Tomlinson may bring a habeas
petition to challenge the BoP’s refusal to apply credits toward prerelease custody.
(ECF No. 10, PageID #130–33.) Respondent does not object to this or any other aspect
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of the Magistrate Judge’s report and recommendation. 	Still, the Court has an
independent obligation to examine its jurisdiction. 	See, e.g., Nikolao v. Lyon, 875
F.3d 310, 315 (6th Cir. 2017) (citations and quotations omitted); Mercurio v. American
Express Centurion Bank, 363 F. Supp. 2d 936, 938 (N.D. Ohio 2005). Therefore, the
Court addresses the question based on the record before it.
18 U.S.C. § 3621(b) opens with a baseline principle: “The Bureau of Prisons
shall designate the place of the prisoner’s imprisonment,” and the statute prescribes
five 	factors 	for 	prison 	officials 	to 	consider 	in 	making 	such 	designations.
“Notwithstanding any other provision of law, a designation of a place of imprisonment
under this statute is not reviewable by any court.” 18 U.S.C. § 3621(b)(5). When the
statute turns specifically to the role of prerelease custody and home confinement, it
reiterates: “"Nothing in this subsection shall be construed to limit or restrict the
authority of the Director of the Bureau of Prisons under Section 3621.” 	18 U.S.C.
§ 3624(c)(4).
“Habeas corpus jurisdiction exists under § 2241 when a prisoner claims that
he was deprived of goodtime credits without due process of law.” 	Julick v. Synder-
Norris, No. 16-6652, 2017 WL 5485453, at *1 (6th Cir. Mar. 1, 2017). This principle
extends to “claims that would change the level of custody, shorten its duration, or
terminate it completely.” 	Terrell v. United States, 564 F.3d 442, 447–48 (6th Cir.
2009) (citing Wilkinson v. Dotson, 544 U.S. 74, 85 (2005) (Scalia, J., concurring);
Graham v. Broglin, 922 F.2d 379, 381 (7th Cir. 1991)). 	But it is “not always
immediately clear whether a prisoner challenges the fact of confinement or the
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conditions of confinement.” Alqsous v. Emmerich, No. 25-cv-722, 2026 WL 125691, at
*3 (W.D. Wis. Jan. 16, 2026).
Here, however, Petitioner makes clear that he seeks release from confinement
and brings more than just a challenge to the designation of his place of his
confinement—prison versus home detention, a halfway house, or another form of
prerelease custody. (ECF No. 11, PageID #138–39.) As he says, “[h]e is not concerned
with where he serves his prison time—he is concerned with being in prison.” 	(Id.,
PageID #139.) 	Because a person remains in the custody of the Bureau of Prisons
whether housed in a federal correctional institution or placed in prerelease custody,
the answer to the jurisdictional question is not at all clear. 	On the facts and
circumstances 	of 	this 	case, 	the 	Court 	agrees 	that 	it 	has 	jurisdiction 	over
Mr. Tomlinson’s habeas petition under Section 2241 because he seeks release from
prison to a materially and substantially less restrictive environment in prerelease
custody.
III. 	Petitioner’s Objections
The Court addresses Petitioner’s first two objections together. Strictly, these
objections go to federal habeas jurisdiction, an issue which the Magistrate Judge and
the Court decided in his favor. 	Because he proceeds pro se, the Court takes the
objection instead as going to a reading of the statute that confers any discretion on
the Bureau of Prisons in the face of its mandatory language regarding credits under
the First Step Act. But the statute does not use the mandatory language in 18 U.S.C.
§ 3632(d)(4)(C) in a vacuum.
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Nothing in the prerelease custody statute “shall be construed to limit or restrict
the authority of the Director of the Bureau of Prisons under Section 3621,” which
governs the designation of the place of confinement for a prisoner. 	18 U.S.C.
§ 3624(c)(4). Under one reading, a designation means placement within a particular
federal correctional institution, before eligibility for any prerelease custody. After all,
the authority in Section 3621(a) of the Bureau of Prisons to hold a person is subject
to prerelease custody in Section 3624. 	Perhaps Congress could have written this
statute—or, more accurately, the interlocking statutory provisions—more clearly.
But the express language appears reasonably straightforward: the Bureau of Prisons
shall calculate time credits and apply them to supervised release and prerelease
custody, but the prerelease custody statute does not limit the discretion of the agency
to carry out its statutory duties.
Under the prerelease custody statute, the Bureau of Prisons “shall, to the
extent practicable,” ensure that a person serves part of his sentence in prerelease
custody. 	Id. § 3624(c)(1). 	“To the extent practicable” sounds less like a mandatory,
non-discretionary obligation in every case and more like a congressional policy that
the Bureau should follow to the greatest extent possible. 	After all, many more
inmates will earn credits toward prerelease custody than the Bureau of Prisons has
spaces or other resources for appropriate placements. 	And the statute states the
purpose of prerelease custody: 	to afford a “prisoner a reasonable opportunity to
adjust to and prepare for the reentry of that prisoner into the community.” Id. Where
a prisoner is subject to removal proceedings, this statutory purpose has less force. In
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such circumstances, the Bureau may practicably decide that scarce prerelease
resources are better spent to assist a person in adjusting to and preparing for reentry
to the community. Mr. Tomlinson might not be such a person.
Finally, Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024), has no
application here. This is so for the simple reason that the Magistrate Judge (and the
Court) did not defer to the agency in interpreting the statute. 	That is, Respondent
proffered no interpretation of the statute to which any judicial officer deferred.
Instead, the Magistrate Judge (and the Court) read the statute and gave it its
intended force and effect, fulfilling the function of the judicial department to say what
the law is. 	Loper Bright does not mean that courts will read statutes not to confer
operational or administrative discretion on agencies. 	Nor does the Court have the
constitutional or statutory authority to run a part of the Executive Branch, though
rulings from district courts to the contrary are enjoying their fifteen minutes of fame.
To the extent anything remains of Petitioner’s third objection, Mr. Tomlinson
presents the facts and circumstances of his particular situation as if the Court were
deciding a question of detention before trial under Section 3142. 	But a habeas
petition tests the lawfulness of detention. It is not an invitation to district courts to
rule on a blank slate or to impose its own particularized notions of justice. Instead,
it is collateral to the merits. Here, the Bureau of Prisons has declined to use its scarce
resources to release Mr. Tomlinson into the community where he may be subject to
removal 	proceedings. 	Understanding 	that 	these 	different 	options 	present
qualitatively different restraints on Mr. Tomlinson’s liberty, whether incarcerated or
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held in prerelease custody, Mr. Tomlinson remains in the custody of the Bureau of
Prisons. That custody, that infringement on Mr. Tomlinson’s liberty, is lawful.
CONCLUSION
For the foregoing reasons, the Court OVERRULES Petitioner’s objections
(ECF No. 11), ADOPTS the Magistrate Judge’s Recommendation (ECF No. 10), and
GRANTS Respondent’s motion to dismiss (ECF No. 7).
SO ORDERED.
Dated: March 26, 2026
J. Philip Calabrese
United States District Judge
Northern District of Ohio
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