United States District Court, D. Nebraska
MEMORANDUM AND ORDER
F. Bataillon, Senior United States District Judge.
matter is before the Court on defendant Anthony Laurita's
pro se “Motion Habeas Corpus Relief and for Interim
Conditional Release Pursuant to the First Step Act Amendment
to the Good Time Statute” under 28 U.S.C. § 2255.
Filing No. 618.
the Rules Governing Section 2255 Proceedings for the United
States District Courts (“2255 Rules”), the court
must perform an initial review of the defendant's §
2255 motion. See 28 U.S.C. § 2255, Rule 4(b).
The rules provide that unless “it plainly appears from
the face of the motion and any annexed exhibits and the prior
proceedings in the case that the movant is not entitled to
relief in the district court, ” the court must order
the United States Attorney to respond to the motion.
defendant was sentenced to 54 months imprisonment for a
violation of 18 U.S.C. § 2252A(a)(5)(B), access with
intent to view child pornography. Filing No. 584, Judgment.
He is presently incarcerated at the Federal Correctional
Institution in Allenwood, Pennsylvania. See
https://www.bop.gov/locations/institutions. Under current
calculation methods, Laurita is projected to be released on
December 16, 2019. Id. Laurita contends that under
the recently enacted First Step Act of 2018, Pub. L. No.
115-391, § 102(b)(2), 132 Stat. § 5194, 5210 (2018)
(the “First Step Act” or the Act), he should
receive an additional 27 days of good time credits on his 54
months sentence, advancing his projected release date to
November 18, 2019. He asserts the BOP has not yet acted to
change his projected release date, asserting that the First
Step Act provides a delayed effective date for implementation
of the good time credit amendment.
initial review, the court finds that “it plainly
appears that the defendant is entitled to no relief, ”
and that the government should not be required to answer.
See Rule 8(a) of the Rules Governing Section 2255
Proceedings for the United States District Courts.
Laurita's claim is premature. He relies on a provision of
the new statute that has not yet taken effect. Further, he
has not exhausted his administrative remedies.
First Step Act was enacted on December 21, 2018. Pub. L. No.
115-391, § 102(b)(2), 132 Stat. 5194. The relevant
provision, Section 102(b) of the new law, amends 18
U.S.C.§ 3624(b)-the “good time credit”
statute-adjusting the method by which the Bureau of Prisons
(“BOP”) calculates the credit. Id.,
§ 102(b)(2), 132 Stat. § 5194, 5210. The adjustment
will ensure that defendants receive the maximum of 54 days of
good conduct time for each year of the sentence that was
imposed, rather than-as had been BOP's practice-for each
year of the sentence that had been actually served. See
generally id. (abrogating Barber v.
Thomas, 560 U.S. 474 (2010)); see also United States
v. Sathajhan Sarachandran, No. 06 CR. 615 (RJD), 2019 WL
2568712, at *1-3 (E.D.N.Y. June 20, 2019).
the plain terms of the statute, the provision of the First
Step Act that applies to good time does not take effect until
the Attorney General “completes and releases the risk
and needs assessment system.” Pub. L. 115-391, §
102, 132 Stat. 5194, 5213. The plain language of the Act
provides the Attorney General 210 days to complete the risk
and needs assessment system. Pub. L. 115-391, § 102(a),
132 Stat. 5194, 5196. This 210-day period has not expired,
and the amendment to Section 3624(b) will not take effect
until approximately mid-July, 2019. See Robertson v.
Marques, No. 19-CV-1009 (WMW/SER), 2019 WL 2464805, at
*1 (D. Minn. June 13, 2019); Crittendon v. White,
No. 1:19-cv-669, 2019 WL 1896501, at *1 (M.D. Pa. Apr. 20,
2019); Pizarro v. White, 2019 WL 1922437, at *1
(M.D. Pa. Apr. 30, 2019); Christopher v. Wilson,
2019 WL 1745968, at *1 (N.D. Tex. Apr. 18, 2019);
Matthews v. Williams, 2019 WL 1639776, at *2 (N.D.
Ohio Apr. 16, 2019); Roy v. United States Bureau of
Prisons, 2019 WL 1441622, at *1 (E.D. Wash. Apr. 1,
the amendments to § 3624(b)(1) are not in effect, the
BOP has no statutory authority to recalculate Laurita's
good time credit. See Robertson, 2019 WL
2464805, at *1; Christopher, 2019 WL 1745968, at *2;
Matthews, 2019 WL 1639776, at *2; Roy, 2019
WL 1441622, at *2. Laurita's habeas petition is therefore
premature.See Robertson, 2019 WL 2464805, at
*1; Pizarro, 2019 WL 1922437, at *1;
Christopher, 2019 WL 1745968, at *2;
Matthews, 2019 WL 1639776, at *2; Roy, 2019
WL 1441622, at *2; Crittendon, No. 1:19-cv-669, 2019
WL 1896501, at *1; Schmutzler v. Quintana, No.
5:19-cv-46, 2019 WL 727794, at *2 (E.D. Ky. Feb. 20, 2019);
Costa v. Parr, No. 119-CV-00318-LJO-JDP(HC), 2019 WL
2490657, at *9 (E.D. Cal. June 14, 2019). But see United
States v. Walker, 10-CR-298 (RRB) (D. Or. Feb. 7, 2019)
(unpublished) Filing No. 110 (ordering that BOP
“recalculate Defendant's release date
forthwith” using the amended good-time-credit provision
at rate of 54 good conduct days per year).
Laurita does not present a cognizable habeas corpus claim.
Section 102(b)(2) of the First Step Act plainly and
explicitly indicates that the pertinent amendments have not
become effective, so the petitioner cannot prevail.
Accordingly, it plainly appears from the face of the motion
that the movant is not entitled to relief in the district
court. The government will not be required to answer, and
Laurita's petition will be dismissed as premature,
IT IS ORDERED:
1. On initial review, the Court finds that summary dismissal
2. The petition will be dismissed, without prejudice.
3. A judgment in conformity with this Memorandum and Order