Hubbard v. FCI Berlin, Warden

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Quincy Hubbard
v. Civil No. 23-cv-6-SE
Warden, FCI Berlin
REPORT AND RECOMMENDATION
Quincy Hubbard, a prisoner incarcerated at the Federal
Correctional Institution in Berlin, New Hampshire (“FCI Berlin”),
filed a petition for writ of habeas corpus pursuant to 28 U.S.C.
§ 2241 (Doc. No. 1). Mr. Hubbard challenges the Bureau of Prisons’
(“BOP”) determination that he is presently ineligible for the
application of First Step Act (“FSA”) time credits.1 Before the
court is the Respondent Warden’s motion for summary judgment (Doc.
No. 4). Mr. Hubbard objects (Doc. Nos. 6, 7, 8). Because no
genuine dispute of material fact exists on the issue of Mr.
Hubbard’s ineligibility for the application of FSA time credits, the
district judge should grant the Warden’s motion.
Summary Judgment Standard
“A district court ruling upon a petition for the writ of habeas
corpus may hear motions for summary judgment, as in civil
litigation.” Whitaker v. Meachum, 123 F.3d 714, 716 (2d Cir. 1997).
1 In his petition, Mr. Hubbard also challenged the BOP’s
calculation and allocation of FSA earned time credits, but in a
recent status report (Doc. No. 9), he represented that the issue is
moot.
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Summary judgment is appropriate when the moving party shows that
“there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
A “material fact” is one that has the “potential to affect the
outcome of the suit.” Cherkaoui v. City of Quincy, 877 F.3d 14, 23
(1st Cir. 2017) (citation and internal quotation marks omitted). A
“genuine dispute” exists if a jury could resolve the disputed fact
in the nonmovant’s favor. Ellis v. Fidelity Mgmt. Tr. Co., 883 F.3d
1, 7 (1st Cir. 2018).
Background
In 2006, Mr. Hubbard, received a 294-month sentence for drug
and gun crimes, which the court in his criminal case later reduced
to a 262-month term of imprisonment. See Decl. of Maury Yeakel,
Feb. 13, 2023, (“Yeakel Decl.”) (Doc. No. 4-1, ¶ 5); see also Oct.
29, 2012 Order, United States v. Hubbard, No. 3:05-cr-50055-1 (N.D.
Ill.) (ECF No. 65), aff’d, No. 12-3584 (7th Cir. Apr. 19, 2013) (ECF
No. 78). At some point, the BOP transferred Mr. Hubbard to FCI
Berlin to serve his federal sentence. Mr. Hubbard’s projected
release date via good conduct time is July 4, 2024. Yeakel Decl.
(Doc. No. 4-1, ¶ 5).
I. FSA Time Credits
Mr. Hubbard has earned more than a year of FSA time credits,
which have not been applied to affect his date of release or
placement in prerelease custody (a halfway house or home
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confinement). Id. ¶ 9. When time credits earned for certain risk-
reducing activities or programs are applied to an eligible
prisoner’s sentence under the FSA, the credits may advance the date
when the prisoner is released to begin his or her term of supervised
release, or those credits may effectively reduce the prisoner’s time
of incarceration by allowing the prisoner to be placed in a halfway
house or home confinement earlier.
II. Risk of Recidivism
Under the FSA, the BOP assesses each prisoner’s risk of re-
offending upon release, by applying an algorithm that generates a
“PATTERN” score. Walsh v. Boncher, No. 22-cv-11197-DLC, 2023 U.S.
Dist. LEXIS 10812, at *2 n.1, 2023 WL 363591, at *1 n.1 (D. Mass.
Jan. 23, 2023). PATTERN is an acronym for “Prisoner Assessment Tool
Targeting Estimated Risk and Needs.” A PATTERN score measures the
prisoner’s “‘criminal risk factors . . . to predict the likelihood
that a person in federal prison will re-offend upon release.’” Id.,
2023 U.S. Dist. LEXIS 10812, at *2, 2023 WL 363591, at *1 (citation
omitted). “The four PATTERN risk scores are minimum, low, medium,
and high-risk.” Id.
From November 19, 2019 through April 2021, Mr. Hubbard’s
PATTERN risk score, or risk of recidivism, was assessed as high.
See Yeakel Decl. (Doc. No. 4-1, ¶ 7). Currently, Mr. Hubbard’s
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PATTERN risk score is medium2 and has been medium in his last two
risk assessments. Id. ¶ 8. According to the Warden, Mr. Hubbard
has never received a minimum or low PATTERN risk score, Yeakel Decl.
(Doc. No. 4-1, ¶ 11), and Mr. Hubbard provides no evidence to the
contrary. Further, it is undisputed that Mr. Hubbard has a prison
disciplinary record that includes a finding of guilty as to four
high-severity disciplinary offenses within the last three years.
Id.; see also BOP Inmate Disciplinary Record (Doc. No. 4-1, at 15-
17).
In his § 2241 petition, Mr. Hubbard claims that the BOP should
have applied his FSA earned time credits to his sentence on or
before January 2022, when he asserts his recidivism risk level was
low or minimum.3
2 Pursuant to this court’s June 12, 2023 order, which directed
the parties to file updated information regarding the BOP’s
assessment of Mr. Hubbard’s FSA recidivism risk level, the parties
filed status reports (Doc. Nos. 9, 10), which indicate that Mr.
Hubbard’s risk assessment score remains medium.
3 Mr. Hubbard does not offer any sworn statement or other
evidence to support his assertion that his recidivism risk
registered within the minimum or low range, from December 21, 2018
until February 15, 2022. (Doc. No. 1, at 1). Exhibits filed by the
Warden show that the BOP considered his recidivism risk to be high
in November 2019 in its initial assessment of that risk, and that
Mr. Hubbard’s PATTERN score improved to medium in November 2021,
where it has remained ever since. This court need not resolve that
dispute as its resolution will not affect the outcome of the motion
for summary judgment.
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Discussion
The Warden moves for summary judgment on all of Mr. Hubbard’s
claims and asserts that the BOP’s pertinent actions and sentence
calculations are consistent with the FSA’s requirements.
Specifically, given the results of Mr. Hubbard’s recent recidivism
risk assessments and his disciplinary history, he is ineligible for
the application of FSA time credits. In response, Mr. Hubbard
contends that his earned time credits should have been applied to
his sentence no later than January 2022.
The FSA generally renders a person ineligible for early
transfer to supervised release if his or her risk of recidivism, as
reflected in his or her most recent PATTERN score, is medium or
high, and similarly precludes early placement in prerelease custody
if his or her two most recent PATTERN scores are medium or high,
unless the Warden has approved the person’s petition for transfer to
prerelease custody or supervised release. See 18 U.S.C.
§ 3624(g)(1)(D)(i)-(ii); see also Goodman v. Sage, No. 4:22-CV-
00981, 2022 U.S. Dist. LEXIS 233946, at *4, 2022 WL 18028148, at *2
(M.D. Pa. Dec. 30, 2022).
There is no suggestion here that the petitioner has obtained
the Warden’s approval of a transfer petition, or that his most
recent PATTERN score is minimum or low. Rather, the undisputed
facts demonstrate that Mr. Hubbard’s current PATTERN score and two
most recent PATTERN scores have been medium. Further, the Warden
has not exercised his discretion to allow Mr. Hubbard to be
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transferred to prerelease custody given Mr. Hubbard’s
disciplinary record that includes a finding of guilty as to four
high-severity disciplinary offenses within the last three years.
See BOP Inmate Disciplinary Record (Doc. No. 4-1, at 15-17).
Accordingly, the undisputed facts demonstrate that Mr. Hubbard is
ineligible for the application of FSA time credits to his sentence,
and therefore, the Warden is entitled to judgment as a matter of
law.
Conclusion
For the foregoing reasons, the district judge should grant the
Warden’s motion for summary judgment (Doc. No. 4), and direct the
clerk to enter judgment and close this case. Any objections to this
Report and Recommendation must be filed within fourteen days of
receipt of this notice. See Fed. R. Civ. P. 72(b)(2). The
fourteen-day period may be extended upon motion. Failure to file
specific written objections to the Report and Recommendation 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).
_______________________________
Andrea K. Johnstone
United States Magistrate Judge
July 31, 2023
cc: Quincy Hubbard, pro se
Seth R. Aframe, Esq.
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