Case 2:22-cv-07273-JAK-MAR Document 23 Filed 02/27/23 Page 1 of 7 Page ID #:406

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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9 10 CRAIG SHULTS, Case No. 2:22-cv-07273-JAK (MAR) 11 Petitioner, FINAL REPORT AND

RECOMMENDATION OF UNITED

12 v. STATES MAGISTRATE JUDGE 13 BRIAN BIRKHOLZ ET AL, 14 Respondent. 15 16 This Final1 Report and Recommendation is submitted to the Honorable John 17 A. Kronstadt, United States District Judge, pursuant to 28 U.S.C. § 636 and General 18 Order 05-07 of the United States District Court for the Central District of California. 19 I. 20 SUMMARY OF RECOMMENDATION 21 Petitioner, Craig Shults (“Petitioner”), proceeding pro se, has filed a Petition 22 for Writ of Habeas Corpus by a Person in Federal Custody (“Petition”) pursuant to 23 28 U.S.C. § 2241. ECF Docket No. (“Dkt.”) 1 at 1.2 Respondent filed an answer 24 25 1 This Final Report and Recommendation is identical to the original, except for the fact that the Certificate of Appealability section is omitted, as it was included in error. See Harrison v. Ollison, 26 519 F.3d 952, 958 (9th Cir. 2008) (noting “[a]lthough state prisoners proceeding under § 2241 must obtain a [certificate of appealability], see § 2253(c)(1)(A), there is no parallel requirement for federal 27 prisoners” who file “legitimate § 2241 petitions”). The recommendation is otherwise unchanged. 28 2 All citations to electronically filed documents refer to the CM/ECF pagination. Case 2:22-cv-07273-JAK-MAR Document 23 Filed 02/27/23 Page 2 of 7 Page ID #:407

1 (“Answer”), arguing that Petitioner is not entitled to relief. Dkt. 13. Petitioner filed a 2 Motion for Bail, Dkt. 16, and a Traverse (“Traverse”), Dkt. 17. 3 For the reasons that follow, the Court recommends: (1) accepting this Report 4 and Recommendation; (2) DENYING the Petition; (3) DENYING the Motion for 5 Bail; and (4) DISMISSING this action with prejudice. 6 II. 7 BACKGROUND 8 On September 29, 2022, Petitioner, who is in federal custody and proceeding 9 pro se, constructively filed3 the instant Petition. Dkt. 1. Petitioner argues he is 10 entitled to the application of 630 days of earned time credit (“ETC”) under the First 11 Step Act of 2018 (“FSA”). Dkts. 1 at 3–4; 2 at 11–12. Petitioner contends that, if all 12 his ETCs were applied correctly, he would be entitled to release into a Bureau of 13 Prisons (“BOP”) halfway house immediately. 14 In their Answer, Respondent confirms that BOP determined Petitioner was 15 eligible for ETCs under the FSA, and that, as of October 10, 2022, Petitioner had 16 earned a total of 630 ETCs. Dkt. 13-1 at 3–4. However, as discussed below, 17 Respondent contends Petitioner misapprehends the application of his ETCs and the 18 interaction between his ETCs and his case manager’s recommendation. Dkt. 13 at 7– 19 10. 20 Petitioner filed a Motion for Bail, Dkt. 16, and a Traverse, Dkt. 17. Petitioner 21 maintains that a correct application of his remaining ETCs would entitle him to 22 release into a BOP halfway house immediately. Id. 23 /// 24 /// 25 /// 26

27 3 Under the “mailbox rule,” when a pro se prisoner gives prison authorities a pleading to mail to 28 court, the court deems the pleading constructively “filed” on the date it is signed. Roberts v. Marshall, 627 F.3d 768, 770 n.1 (9th Cir. 2010) (citation omitted). 2 Case 2:22-cv-07273-JAK-MAR Document 23 Filed 02/27/23 Page 3 of 7 Page ID #:408

1 III. 2 DISCUSSION 3 A. APPLICABLE LAW 4 Under the FSA, “[t]ime credits earned . . . shall be applied toward time in 5 prerelease custody or supervised release.” 18 U.S.C. § 3632(d)(4)(C). “If the 6 sentencing court included as a part of the prisoner’s sentence a requirement that the 7 prisoner be placed on a term of supervised release after imprisonment . . . , [the BOP] 8 may transfer the prisoner to begin any such term of supervised release at an earlier 9 date, not to exceed 12 months, based on the application of time credits.” Id. 10 § 3624(g)(3) (emphasis added); see also 28 C.F.R. § 523.44(d)(3) (“The application of 11 FSA Time Credits would result in transfer to supervised release no earlier than 12 12 months before the date that transfer to supervised release would otherwise have 13 occurred.”). “Early transfer to supervised release effectively reduces an inmate’s 14 sentence by, at max, one year.” Mills v. Starr, No. 21-cv-1335, 2022 WL 4084178, at 15 *1, *4 (D. Minn. Aug. 17, 2022); see also, e.g., Roberts v. Cox, No. 4:20-CV-04187, 16 2022 WL 742489, at *2 (D. S.D. Mar. 11, 2022) (“Further, the BOP cannot grant an 17 inmate more than twelve months of supervised release for earned time credits under 18 the First Step Act.” (citing 18 U.S.C. § 3624(g)(3))). 19 Additionally, “[u]nder the First Step Act, an inmate is only eligible to have their 20 time credits applied if they meet certain criteria under 18 U.S.C. § 3624(g).” Mills, 21 2022 WL 4084178, at *4. “That criteria includes having accumulated time credits in 22 an amount that is equal to the remainder of [the inmate’s] imposed term of 23 imprisonment . . . .” Id.; see also 18 U.S.C. § 3624(g)(1)(A) (eligibility requirement 24 that prisoner “has earned time credits . . . in an amount that is equal to the remainder 25 of the prisoner’s imposed term of imprisonment”); 28 C.F.R. § 523.44(b)(1) (time 26 credits may be applied toward prerelease custody or early transfer to supervise release 27 if eligible inmate has “[e]arned FSA Time Credits in an amount that is equal to the 28 remainder of the inmate’s imposed term of imprisonment”). “In other words, the 3 Case 2:22-cv-07273-JAK-MAR Document 23 Filed 02/27/23 Page 4 of 7 Page ID #:409

1 First Step Act provides that a prisoner is eligible to have earned time credits applied 2 for supervised release or prelease custody only when []he has earned time credits that 3 equal the remainder of h[is] sentence.” Mills, 2022 WL 4084178, at *4; see Adkins v. 4 Engleman, No. CV 22-1988, 2022 WL 14966123, at *2 (C.D. Cal. Sept. 8, 2022) 5 (“Federal courts around the country read Section 3624(g)(1)(A) to mean that the BOP 6 is permitted to apply time credits only once an inmate has earned enough that equal 7 the remainder of her sentence.” (quotation omitted)), report and recommendation 8 accepted, 2022 WL 15116425 (C.D. Cal. Oct. 24, 2022). 9 Courts have explained that this “statutory requirement has a commonsense 10 basis.” Adkins, 2022 WL 14966123, at *2. Time credits may be lost, such as through 11 disciplinary infractions. Milchin v. Warden, No. CV 3:22-195, 2022 WL 1658836, at 12 *3 (D. Conn. May 25, 2022); see generally 18 U.S.C. § 3632(e); 28 C.F.R. §§ 523.43, 13 541.3. When earned time credits equal the remainder of a prisoner’s sentence, they 14 “can be immediately applied and would no longer be subject to loss for future 15 prohibited acts.” Milchin, 2022 WL 1658836, at *3; accord Adkins, 2022 WL 16 14966123, at *2; Mills, 2022 WL 4084178, at *4 n.5. 17 B. ANALYSIS 18 Here, there is no dispute that Petitioner is eligible to earn ETCs under the FSA 19 and has earned 630 ETCs thus far. Dkts. 13-1 at 4; 2 at 12. However, the parties 20 disagree about the correct application of the ETCs—specifically, whether Petitioner’s 21 earned ETCs entitle him to an immediate transfer to a halfway house. 22 Both parties agree that, without factoring in any ETCs under the FSA and 23 considering only Good Conduct Time (“GCT”), Petitioner’s projected release date 24 would be April 21, 2025. 4 Dkt. 13-1 at 3. BOP projected that 365 of Petitioner’s 25 26 4 Petitioner was sentenced to three (3) years “supervised release” (i.e., parole), in addition to his term 27 of imprisonment. United States v. Shults, et al., No. 8:12-cr-90-JLS, Dkt. 503 (C.D. Cal. Nov. 12, 2014). Accordingly, this “release date” technically represents a transfer to “supervised release.” To 28 avoid potential confusion with Petitioner’s potential transfer to “pre-release custody” (i.e., transfer to a halfway house), the undersigned simply refers to April 21, 2025 as Petitioner’s release date. 4 Case 2:22-cv-07273-JAK-MAR Document 23 Filed 02/27/23 Page 5 of 7 Page ID #:410

1 ETCs would be applied toward his early release—the maximum allowed by the 2 statute. Id.; Dkt. 13 at 7–8. Accordingly, assuming Petitioner earns all available GCT 3 and ETCs, Petitioner’s anticipated FSA release date will be April 21, 2024. Id. Again, 4 the parties are in agreement up until this point. Dkt. 2 at 12. 5 The parties also agree the remaining 265 ETCs will apply toward Petitioner’s 6 placement in “pre-release custody,” i.e., transfer into a halfway house. Id.; Dkt. 13 at 7 5. However, Respondent notes that, pursuant to the authorizing statute, the 8 remaining 265 of Petitioner’s ETCs cannot be applied toward Petitioner’s placement 9 in pre-release custody until the remaining ETCs are “equal to the remainder of the 10 prisoner’s imposed term of imprisonment.” 18 U.S.C. § 3624(g)(1)(A); see Dkt. 13 at 11 5. As of November 17, 2022, accounting for GCT, Petitioner still had 886 days left in 12 his imposed term of imprisonment, and 521 days until his projected FSA release date.5 13 Dkt. 13 at 5. Accordingly, Petitioner’s remaining 265 ETCs cannot yet be applied 14 toward his release into pre-release custody. 15 Petitioner argues that this conclusion is somehow altered by the fact that his 16 BOP case manager recommended him for 271 to 365 days of pre-release halfway 17 house time. Dkt. 2 at 12. Petitioner argues that his 265 ETCs should be added to the 18 271 to 365 pre-release days recommended (totaling 536 days if using the lesser 271- 19 day recommendation), resulting in a pre-release date of Oct. 15, 2022. Id. He 20 therefore argues he is entitled to be moved to a halfway house immediately, and that 21 this Court should release him to a halfway house on bail pending a decision on this 22 Petition. Dkt. 16. 23 Petitioner is mistaken regarding the effect of his case manager’s 24 recommendation. First, Congress has given the Attorney General, and by designation 25 26 5 Petitioner’s GCT date is his statutorily imposed release date after Petitioner’s GCTs are applied. Under the FSA up to 365 ETCs can be applied in addition to GCTs to effectively shorten an 27 inmates sentence by up to an additional year, thereby affording inmates an earlier “FSA release date.” Any additional ETCs over 365 may be applied to pre-release custody, such as placement in a 28 halfway house, but may only be applied once the remaining ETCs are “equal to the remainder of the prisoner’s imposed term of imprisonment.” 18 U.S.C. § 3624(g)(1)(A). 5 Case 2:22-cv-07273-JAK-MAR Document 23 Filed 02/27/23 Page 6 of 7 Page ID #:411

1 the BOP, exclusive authority to determine custody placements, including home 2 confinement; this determination is not reviewable by this Court. Reeb v. Thomas, 3 636 F.3d 1224, 1226–28 (9th Cir. 2011) (holding that the BOP’s discretionary 4 determination to expel the petitioner from the residential drug abuse program 5 (RDAP) was not reviewable); 18 U.S.C. § 3621(b) (“Notwithstanding any other 6 provision of law, a designation of a placement of imprisonment under this subsection 7 is not reviewable by any court.”). Accordingly, whether BOP acts upon the custody 8 recommendation of its own case manager is solely within its discretion; this Court has 9 no authority to review, or enforce, the BOP’s case manager’s recommendation. 10 In any case, the recommendation of Petitioner’s BOP case manager does not 11 actually alter Petitioner’s imposed sentence or FSA release date. As noted above, 12 ETCs can only be applied toward pre-release custody once the earned ETCs equal the 13 remainder of Petitioner’s sentence. See 18 U.S.C. § 3624(g)(1)(A). Regardless of the 14 case manager’s recommendation, Petitioner has 886 days until his projected GCT 15 release date and 521 days until his projected FSA release date; accordingly, under 18 16 U.S.C. § 3624(g)(1)(A), his 265 days of ETC cannot yet be applied toward release into 17 a halfway house. 18 As such, Petitioner’s claim fails, and his Motion for Bail pending the judgment 19 on this Petition is denied as moot. 20 IV. 21 RECOMMENDATION 22 IT IS THEREFORE RECOMMENDED that the District Court issue an 23 Order: 24 (1) accepting this Report and Recommendation; 25 (2) DENYING the Petition; 26 (3) DENYING the Motion for Bail; and 27 (4) DISMISSING this action with prejudice. 28 V. 6 Case P:22-cv-07273-JAK-MAR Document 23 Filed 02/27/23 Page 7of7 Page ID #:412

1 NOTICE 2 Reports and Recommendations are not appealable to the Court of Appeals, but 3 | may be subject to the right of any party to file objections as provided in the Local 4 | Rules Governing the Duties of Magistrate Judges and review by the District Judge 5 | whose initials appear in the docket number. No Notice of Appeal pursuant to the 6 | Federal Rules of Appellate Procedure should be filed until entry of the judgement of 7 | the District Court. 9 10 | Dated: February 27, 2023 11 HONORABLE MARGO A. ROCCONI 12 United States Magistrate Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -