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Buskey v. Davies

United States District Court, D. New Hampshire

April 16, 2019

Daniel Buskey
Walter Davies, Director, Hampshire House; and J. Ray Ormond, Regional Director, Bureau of Prisons, Northeast Regional Office

          Daniel Buskey, pro se.


          Andrea K. Johnstone, United States Magistrate Judge.

         Before 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).


         On 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 17, 2019.

         In his 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.

         Buskey 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.

         Buskey 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.


         I. Nature of Action

         It 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.[1]

         II. Standard

         In 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).

         III. Good Time Credit Under ...

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