United States District Court, D. New Hampshire
Buskey, pro se.
REPORT AND RECOMMENDATION
K. Johnstone, United States Magistrate Judge.
the court is petitioner Daniel Buskey's filing, entitled
“Motion for Good Time Credits (Pursuant to the First
Step Act)” (Doc. No. 1), which this court has construed
as a petition for a writ of habeas corpus filed pursuant to
28 U.S.C. § 2241, challenging the calculation of his
federal prison sentence by the Federal Bureau of Prisons
(“BOP”). The matter is before the undersigned
magistrate judge for preliminary review to determine whether
the petition is facially valid and may proceed. See Rule 4 of
the Rules Governing Section 2254 Cases (“§ 2254
Rules”); § 2254 Rule 1(b) (allowing application of
the § 2254 Rules to any habeas petition).
February 22, 2013, Buskey plead guilty in this court to one
count of conspiracy to manufacture methamphetamine, and was
sentenced to a seventy-eight month prison term. See
United States v. Buskey, No. 12-cr-49-01-PB (D.N.H.),
ECF No. 27. Buskey asserts here that the BOP has recently
transferred him to the Hampshire House halfway house, and
that he is scheduled to be released from incarceration on May
petition, Buskey invokes Section 102(b) of the
recently-enacted First Step Act of 2018, which, inter alia,
amends 18 U.S.C. § 3624(b)(1), the statute which
authorizes and governs the BOP's calculation of federal
sentences imposed by the federal courts. Section 102(b)(1)
amends § 3624(b)(1) by raising the amount of good-time
credit federal prisoners may receive, for each year of their
sentence, from forty-seven days to fifty-four days.
now challenges the BOP's calculation of his sentence and
release date, and asks the court to direct the BOP to grant
him additional good-time credit. Buskey contends that under
§ 102(b)(1), he is entitled to an additional seven days
of good-time credit for each full year of his
six-and-a-half-year sentence, and four days of prorated good
time credit for the remaining six months of his sentence,
amounting to a total of forty-six additional days of
good-time credit. Applying that figure to his presently
calculated May 17, 2019 release date, Buskey claims he should
have been released on April 2, 2019.
states that the BOP has declined to recalculate his sentence
based on the First Step Act, and further that the BOP does
not intend to make any good-time credit calculation changes
until July 2019 which, Buskey alleges, will deprive him of
good time credit to which he is entitled under § 102(b).
Buskey further alleges, without specificity, that some
federal prisoners with release dates in June, July, and
August 2019, have already had their good-time credit
recalculated and adjusted under the First Step Act, while
Buskey's May 2019 release date has not been so adjusted.
Nature of Action
appears Buskey intended to file his instant request for a
court order, directing the BOP to recalculate his good-time
credit, as a motion in his closed criminal case. However,
“a post-conviction motion attacking either the
execution of a sentence or confinement that is not the result
of a trial court's judgment must be brought in a petition
pursuant to 28 U.S.C. § 2241 in the district where the
defendant is incarcerated or in a regional BOP office.”
United States v. Powell, No. 5:11-cr-75-JMH-1, 2019
U.S. Dist. LEXIS 60012, at *3, 2019 WL 1521972, at *1 (E.D.
Ky. Apr. 8, 2019); see also Fusco v. Grondolsky, No.
17-cv-10771-DHH, 2018 U.S. Dist. LEXIS 145891, at *8-*9, 2018
WL 4100039, at *3 (D. Mass. Aug. 27, 2018). As stated above,
after a sentence has been imposed by the court, discretion
for the calculation of the sentence rests entirely with the
BOP. See 18 U.S.C. §§ 3624(a)-(b). Accordingly,
Buskey's challenge to the BOP's calculation of his
good time credit must be raised in a § 2241 petition,
and the court has so construed his motion.
undertaking § 2254 Rule 4 preliminary review, this court
decides whether the petition contains sufficient factual
matter, accepted as true, to state a claim to relief that is
plausible on its face and cognizable in a federal habeas
action. See McFarland v. Scott, 512 U.S. 849, 856
(1994) (“Federal courts are authorized to dismiss
summarily any habeas petition that appears legally
insufficient on its face.”). When a habeas petitioner
is proceeding pro se, the assertions contained in the
petition are construed liberally. See Erickson v.
Pardus, 551 U.S. 89, 94 (2007) (per curiam).
Good Time Credit Under ...