Komando v. FCI Berlin, Warden Richard A. Luna

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Jerry Ngome Komando
v. 	Case No. 22-cv-425-SE
Warden, FCI Berlin
REPORT AND RECOMMENDATION
Jerry Ngome Komando, a federal prisoner incarcerated at the
Federal Correctional Institution in Berlin, New Hampshire (“FCI
Berlin”), filed a petition for a writ of habeas corpus (Doc. No.
1) under 28 U.S.C. § 2241 alleging that the Federal Bureau of
Prisons (“BOP”) failed to apply First Step Act (“FSA”) time
credits he has earned to his sentence. 	Before the Court is Mr.
Komando’s supplemental memorandum (Doc. No. 25) to his petition,
filed through counsel, which asserts that the BOP has failed to
apply certain time credits petitioner was eligible to earn under
the FSA between June 9, 2021 and December 16, 2021. 	Petitioner
claims that if those time credits were to be applied to his
sentence, he would be entitled to immediate release from BOP
custody upon time served.
In his response (Doc. No. 26) to Mr. Komando’s supplemental
petition, the respondent counters that, under the BOP’s
regulation implementing the FSA, 28 C.F.R. § 523.42(a), Mr.
Komando is entitled only to FSA time credits he has earned since
December 16, 2021, and that his release from BOP custody will
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not occur before March 17, 2023.1 	For reasons stated below, the
Court recommends that the District Judge grant Mr. Komando’ §
2241 petition and release the petitioner from BOP custody upon
time served.2
Standard
A federal prisoner claiming he is “in custody in violation
of the Constitution or laws or treaties of the United States”
1 Although courts generally require prisoners to exhaust
their BOP administrative remedies before filing § 2241 petitions
challenging the BOP’s execution of their sentence, see Rogers v.
United States, 180 F.3d 349, 358 (1st Cir. 1999), that common-
law exhaustion requirement is subject to exceptions, including
futility. 	See, e.g., Idada v. Spaulding, 456 F. Supp. 3d 294,
297 (D. Mass. 2020). 	At the February 27, 2023 hearing, the
Warden advised the Court that he is waiving an exhaustion
defense in this matter.
2 The BOP’s online inmate locator indicates that Mr. Komando
will be released from BOP custody, even without application of
his FSA time credits, on March 17, 2023. 	See Inmate Locator,
https://www.bop.gov/inmateloc/ (last visited Mar. 15, 2023).
Accordingly, the undersigned Magistrate Judge’s recommendation
that the District Judge order Mr. Komando to be released
immediately upon approval of this Report and Recommendation, may
have become moot prior to the District Judge’s order accepting
or rejecting the recommendations set forth herein. 	The
recommendation that the petition be granted, however, and Mr.
Komando’s sentence be recalculated accordingly, does not become
moot, as Mr. Komando is subject to a period of supervised
release. 	See Yanagihara v. Derr, Civil No. 22-00145-JAO-RT,
2023 U.S. Dist. LEXIS 29038, at *8, 2023 WL 2163685, at *3 (D.
Haw. Feb. 22, 2023) (“[A]s it is possible for [Petitioner] to
receive relief in the form of a reduced or modified term of
supervised release,” from his sentencing court, § 2241 petition
challenging BOP’s failure to properly apply FSA time credits not
rendered moot by prisoner’s release).
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may petition the federal District Court for habeas relief. 	28
U.S.C. § 2241(c)(3). 	Section 2241 allows a federal prisoner “to
challenge the execution of (rather than the imposition of) his
or her sentence.” 	Francis v. Maloney, 798 F.3d 33, 36 (1st Cir.
2015). 	The remedy under § 2241 has been traditionally available
to prisoners challenging the computation of their sentences by
the BOP. 	See Thornton v. Sabol, 620 F. Supp. 2d 203, 206 (D.
Mass. 2009). 	The petitioner bears the burden of proving that
his continuing detention violates his federal rights. 	See
Espinoza v. Sabol, 558 F.3d 83, 89 (1st Cir. 2009).
Background3
On June 9, 2021, Mr. Komando was sentenced to a 66-month
term of imprisonment in the Northern District of Texas. 	See
United States v. Komando, No. 3:19-cr-00485-K-1 (N.D. Tex. June
9, 2021). 	After Mr. Komando was sentenced, he was transferred
to multiple facilities before being transferred to FCI Berlin,
his designated BOP facility, on December 16, 2021. 	Mr. Komando
asserts that between June 9, 2021 and December 16, 2021, he was
of good behavior, did not commit any disciplinary infractions,
never refused to participate in any programs, and participated
3 The parties agree on the facts relevant to the Court’s
decision in this matter, as set forth in this Report and
Recommendation, unless otherwise noted.
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in what programming was available to him. 	He further asserts
that he has maintained a low/minimum risk level for the duration
of his federal confinement. 	The respondent has not disputed
these assertions.
Mr. Komando, who is the subject of a detainer lodged with
the BOP by United States Immigration and Customs Enforcement
(“ICE”), filed this § 2241 petition in 2022 asserting that the
BOP had violated his rights under the FSA by failing to apply
any FSA earned time credits to his sentence because of his
detainer. 	On February 6, 2023, after Mr. Komando initiated this
action, the BOP amended its policy to remove any bar to applying
FSA time credits to a prisoner’s sentence based on the existence
of a detainer. 	Accordingly, that issue has become moot.
However, Mr. Komando’s claim that the BOP has failed to
apply FSA time credits he earned between June 9, 2021 and
December 16, 2021, remains at issue. 	To facilitate resolution
of this matter, this Court issued an Order on February 22, 2023,
directing the respondent to file “up-to-date documentation of:
the petitioner’s sentence calculation, FSA Time Credit
assessments, risk assessments, or any other matter impacting the
calculation of the petitioner’s sentence.” 	Feb. 22, 2023 Order
(Doc. No. 23, at 2). 	The Warden filed a response (Doc. No. 27)
to that Order. 	The Court held a hearing in this matter on
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February 27, 2022, at which both parties appeared through
counsel.
Discussion
I. 	The First Step Act
On December 21, 2018, Congress enacted the FSA,4 “with the
purpose of modifying prior sentencing law and expanding
vocational training, early-release programs, and other
initiatives designed to reduce recidivism.” 	United States v.
Venable, 943 F.3d 187, 188 (4th Cir. 2019). 	The FSA requires the
BOP to implement a risk and needs assessment system to track each
prisoner’s risk of recidivism and to expand access to “productive
activities” and other programs to reduce the risk of recidivism
by federal prisoners. 	18 U.S.C. § 3621(h). 	The FSA also
establishes incentives for successful participation in such
programs and activities, including, at issue here, a new type of
sentencing time credit to be applied towards the date of a
prisoner’s access to prerelease custody or a term of supervised
release. 	See id. § 3632(d)(4).
The FSA provides time credits for successful completion of
evidence-based recidivism reduction programs (“EBRRs”) and
4 See First Step Act of 2018, Pub. L. No. 115-391, 132 Stat.
5194 (enacted Dec. 21, 2018).
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productive activities (“PAs”). 	See id. at § 3632(d)(4)(A). 	The
FSA requires that prisoners who complete EBRRs or PAS, “except
an ineligible prisoner under subparagraph (D),” “shall earn time
credits” for successfully completing such programming. 	Id. at
§ 3632(d)(4)(A). 	The FSA allows eligible prisoners to earn ten
days of time credits, or in some cases, fifteen days of credits,
for every 30 days of EBRRs and PAs they participate in while
serving the custodial component of their sentences. 	See id.
§ 3632(d)(4)(A), (B), (D). 	FSA time credits, when applied,
advance the date when the prisoner will be placed in “prerelease
custody” (including home confinement or residential reentry
facilities), or accelerate the date when the prisoner will leave
BOP custody to start a term of court-imposed supervised release.
See Hedges v. U.S. Marshals Serv., No. 5:22-cv-294-DCR, 2022
U.S. Dist. LEXIS 212385, at *3, 2022 WL 17177630, at *3 (E.D.
Ky. Nov. 23, 2022); see also 18 U.S.C. § 3624(g)(3) (BOP may
apply up to twelve months of earned time credits to advance the
date a prisoner begins to serve a term of supervised release).
The FSA also prohibits certain prisoners, or prisoners in
certain circumstances, from earning credits, and disqualifies
certain prisoners who may earn credits from having those credits
applied to their sentences. 	Among such circumstances, as
relevant here, the FSA prohibits prisoners from earning time
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credits during the period when he or she is in “official
detention” but has not yet reached the date his or her “sentence
commences under [18 U.S.C. §] 3585(a).” 	18 U.S.C. §
3632(d)(4)(B)(ii).
The BOP has promulgated regulations for executing and
administering time credits under the FSA. 	See 28 C.F.R. §
523.40(a). 	The stated purpose of those regulations “is to
describe procedures for the earning and application of Time
Credits as authorized by 18 U.S.C. § 3632(d)(4).” 	Id. 	The
regulation Mr. Komando challenges here, 28 C.F.R. § 523.42(a),
concerns the date upon which a prisoner can begin to earn FSA
time credits. 	That regulation states:
An 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).
28 C.F.R. § 523.42(a).
II. 	Chevron Analysis
The parties here agree that the Court -- in considering Mr.
Komando’s challenge to 28 C.F.R. § 523.42(a) as that regulation
has been applied to him, and the BOP’s determination of the date
when he first was able to earn FSA time credits -- should decide
the matter by applying the two-step test set forth in Chevron
USA, Inc. v. Nat’l Res. Def. Council, Inc., 467 U.S. 837, 842
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(1984). 	See generally Laparra-DeLeon v. Garland, 52 F.4th 514,
519 (1st Cir 2022). 	“Under step one, we must determine whether
Congress spoke clearly to the precise question before us. 	If
so, that is ‘the end of the matter.’ 	If not, then we move to
step two, where we defer to the [federal agency]’s
interpretation of the statutory provision if it is reasonable.”
Id. 	(quoting and citing Chevron, 467 U.S. at 842-43).
Under Chevron, this Court first examines whether the plain
language of the FSA establishes the date upon which a prisoner
may start to earn FSA time credits. 	And only if the Court finds
that the statute does not address that question will the Court
go on to consider the substance of the regulation itself.
The pertinent provisions of the FSA concerning when time
credits can -- and cannot -- be earned state the following:
(4) Time credits.—
(A) 	In general.-- 	A prisoner . . . who
successfully completes evidence-based recidivism
reduction programming or productive activities,
shall earn time credits as follows:
(i) 	A prisoner shall earn 10 days of time
credits for every 30 days of successful
participation or productive activities.
(ii) A prisoner determined by the [BOP] to
be at a minimum or low risk for
recidivating, who, over 2 consecutive
assessments, has not increased their risk of
recidivism, shall earn an additional 5 days
of time credits . . . .
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(B) 	Availability. -- A prisoner may not earn
time credits under this paragraph for an
evidence-based recidivism reduction program that
the prisoner successfully completed –
(i) 	prior to the date of the enactment of
[the FSA]; or
(ii) during official detention prior to the
date that the prisoner’s sentence commences
under section 3585(a).
18 U.S.C. § 3632(d)(4)(A)-(B) (emphasis added). 	Construed
together, those provisions make it clear that prisoners “shall”
earn time credits, at the statutory rate, for all qualified
programs in which they successfully participate, except for the
programs in which they participated while imprisoned either
before the FSA was enacted, or in detention before the date when
their “sentence commence[d] under 3585(a).”
Section 3632(d)(4)(B)(ii) points to 18 U.S.C. § 3585(a) to
provide a definition of when a “sentence commences,” for
purposes of defining when the prisoner’s post-enactment
completion of a program would not entitle him or her to FSA time
credits. 	Section 3585(a) -- and § 3632(d)(4)(B) by its
reference to that statute – specifies “the date the defendant is
received in custody awaiting transport to” his initial BOP-
designated facility as the date his or her “sentence to a term
of imprisonment commences” for purposes of determining whether
he can begin to earn FSA time credits. 	For Mr. Komando, the
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parties have agreed that under § 3585(a), June 9, 2021 is the
date his “sentence to a term of imprisonment commence[d].”
Section 523.42(a) does not mirror the language in the FSA
defining when a prisoner can begin earning FSA time credits.
Rather, that regulation specifies a different date as the date
when a prisoner can begin to earn FSA time credits, namely, the
date the prisoner ultimately arrives at his BOP-designated
facility where his sentence will be served. 	See 28 C.F.R. §
523.42(a). 	When that regulation is applied to Mr. Komando,
December 16, 2021 is the earliest date he could earn time
credits despite the fact that his “sentence to a term of
imprisonment commence[d]” on June 9, 2021.
The Court’s Chevron inquiry starts, and ends, at step one
in this case because the plain language of the FSA, and of §
3585(a), clearly establishes the date upon which the FSA must
allow prisoners to start earning FSA time credits. 	There is no
ambiguity in any of the terms of § 3632(d)(4)(A) or (B),
regarding when a prisoner’s completion of programs will not
count for purposes of earning time credits under the FSA. 	There
is also no gap in the statute, with respect to when a prisoner
is ineligible to earn FSA time credits. 	The Court, therefore,
must give effect to the statutory text. 	See Laparra-DeLeon, 52
F.4th at 519; see also Chevron, 467 U.S. at 842-43.
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Here, the date established by the plain language of the FSA
upon which Mr. Komando was entitled to begin earning FSA time
credits is June 9, 2021. 	The regulation’s definition of a
different date is contrary to the express language of the FSA.
The respondent’s interpretation of Mr. Komando’s eligibility for
earning time credits under the FSA, as expressed in 28 C.F.R.
§ 523.42(a), is not entitled to deference under Chevron, as it
contravenes the plain language of the FSA, 18 U.S.C.
§ 3632(d)(4)(B)(ii).
Therefore, this Court finds that 28 C.F.R. § 523.42(a)
cannot be applied to prevent Mr. Komando from earning time
credits to which he is entitled under the plain language of the
FSA. 	Mr. Komando is allowed to earn FSA time credits beginning
on June 9, 2021. 	Accordingly, the District Judge should grant
the petition (Doc. Nos. 1, 26), find that the regulation does
not survive this Court’s Chevron analysis, and direct the
respondent to recalculate Mr. Komando’s time credits.5
Conclusion
For the foregoing reasons, the Court recommends that the
District Judge approve this Report and Recommendation, and issue
the following Order:
5 The court expresses no opinion regarding the application
of the ICE detainer to Mr. Komando’s circumstances.
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1. 	Mr. Komando’s petition (Doc. Nos. 1, 25) is
GRANTED.
2. 	The respondent is directed to recalculate Mr.
Komando’s FSA time credits to include his eligibility for
those credits beginning on June 9, 2021.
3. 	The respondent is directed to release Mr. Komando
from BOP custody upon time served if he has not already
been released.
4. 	The clerk’s office is directed to terminate all
pending motions, enter judgment, and close the case.
_______________________________
Andrea K. Johnstone
United States Magistrate Judge
March 16, 2023
cc: 	Cathy J. Green, Esq.
Seth R. Aframe, Esq.
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