Thomas v. FCI Berlin, Warden

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Robert E. Thomas,
Petitioner
v. 	Case No. 22-cv-550-SM
Opinion No. 2023 DNH 038
Warden, FCI Berlin,
Respondent
O R D E R
Robert Thomas is a federal prisoner seeking relief under 28
U.S.C. § 2241. 	Specifically, he alleges that the Bureau of
Prisons (“BOP”) has improperly calculated his release date by
failing to apply “time credits” he has earned under the First
Step Act (the “FSA”). 	See Pub. L. No. 115-391, 132 Stat. 5194
(enacted Dec. 21, 2018).
The government seems to concede that it improperly
determined that Thomas was ineligible for FSA time credits and,
as a consequence, miscalculated his anticipated release date.
But, it says it has addressed that error, credited Thomas with
365 “FSA time credits” (the maximum allowable), and recalculated
his proper release date. 	Accordingly, the government moves to
dismiss Thomas’s petition on grounds that there is no additional
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relief available to him under the FSA and his petition is now
moot. 	Thomas has not objected or otherwise responded to the
government’s motion. 	For the reasons discussed, that motion is
granted.
The First Step Act
Because Thomas’s claim focuses on his entitlement to “time
credits” under the FSA, it is, perhaps, appropriate to briefly
discuss that statute. 	As this court (Johnstone, M.J.) recently
noted, Congress enacted the FSA in December of 2018,
“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 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
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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.
Yufenyuy v. Warden, FCI Berlin, No. 22-CV-443-AJ, 2023 WL
2398300, at *2–3 (D.N.H. Mar. 7, 2023).
Discussion
In 2001, Thomas was convicted of possession with intent to
distribute heroin and sentenced to serve a 360-month term of
imprisonment. 	He was subsequently re-sentenced to a term of 324
months. 	To date, he has served more than 20 years in prison.
According to documents attached to Thomas’s petition, in
the fall of 2022, Thomas was eligible for, and had accrued, 140
FSA time credits and had a projected release date of December 4,
2024. 	See Petition, Exhibit 1 (document no. 1-2) at 3 and
Exhibit 2 (document no. 1-3) at 1. 	But, in December of 2022,
something changed: Thomas’s status was amended and BOP records
showed that he was “ineligible” for FSA time credits. 	Petition,
Exhibit 3 (document no. 1-4) at 1-2. 	That error seems to have
deprived Thomas of the 140 FSA time credits he had accrued.
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Thomas says he was deprived of another 920 days of credit
because the BOP’s computer system had improperly determined that
he had failed to complete programming in certain “missing need
areas” when he had, in fact, completed those programs. 	See FSA
Time Credit Assessment (document no. 5-2). 	See also Emails from
Thomas to prison authorities (document no. 5-4) 1 and 3.
Thomas’s petition prompted the government to review his
claims and recalculate the number of FSA time credits to which
he was entitled. 	Following that review, the government
determined that Thomas was entitled to 365 days of FSA time
credits – the maximum allowable under the FSA.
Petitioner’s original projected release date was
December 4, 2024, via good conduct time pursuant to
18 U.S.C. § 3624(b). 	The BOP applied 365 FSA time
credits toward Petitioner’s early transfer to
supervised release. 	Therefore, his current projected
release date is December 5, 2023. 	A true and accurate
copy of the Sentence Monitoring Computation Data for
Robert Thomson is attached hereto as Attachment 1.
Magnusson Affidavit at para. 4. 	See also 18 U.S.C.A.
§ 3624(g)(3) (providing that the BOP may apply no more than 12
months of earned FSA time credits to advance an inmate’s release
date).
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In the end, then, the BOP says it determined that based
upon accrued good time credit, see 18 U.S.C. § 3624(b), Thomas’s
projected release date was December 4, 2024 (Thomas does not
challenge that calculation). 	The BOP then applied the maximum
number of FSA time credits toward his early transfer to
supervised release and concluded that his properly-calculated
release date is now December 5, 2023. 	And, in light of that new
calculation, Thomas was recently “transferred to a Residential
Reentry Center in Michigan City, Indiana” where he is “expected
to remain in prerelease custody until his release on December 5,
2023.” 	Magnusson Affidavit at para. 5.
Conclusion
Thomas has been credited with the maximum number FSA time
credits and the issues surrounding the proper calculation of his
release date appear to have been addressed and resolved. 	Given
Thomas’s silence, the court must infer that he does not argue
otherwise.
For the foregoing reasons, the government’s motion to
dismiss Thomas’s petition as moot (document no. 12) is granted.
Thomas’s Motions for Immediate Release (documents no. 7 and 10)
are denied. 	The Clerk of Court shall enter judgment in
accordance with this order and close the case.
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SO ORDERED.
____________________________
Steven J. McAuliffe
United States District Judge
April 17, 2023
cc: 	Robert Thomas, pro se
Seth R. Aframe, AUSA
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