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Fortner v. Eischen

U.S. District Court, District of Minnesota

Fortner v. Eischen

Trial Court Opinion

                   UNITED STATES DISTRICT COURT                          
                      DISTRICT OF MINNESOTA                              
ANTHONY FORTNER,                                                         
                                      Civil No. 24-1496 (JRT/LIB)        
                      Petitioner,                                        

v.                                                                       
                                 MEMORANDUM OPINION AND ORDER            
B. EISCHEN, Warden Bureau of Prisons,  ADOPTING REPORT AND               
                                        RECOMMENDATION                   
                     Respondent.                                         

    Anthony Fortner, Registration Number 11108-040, FPC Duluth, P.O. Box 
    1000, Duluth, MN 55814, pro se Petitioner.                           

    Ana H. Voss and Lucas B. Draisey, UNITED STATES ATTORNEY’S OFFICE, 300 
    South Fourth Street, Suite 600, Minneapolis, MN 55415, for Respondent.  


    Petitioner Anthony Fortner petitions for a writ of habeas corpus to have the First 
Step Act Time Credits for his time spent at a Texas federal facility applied to his sentence 
such that he would become eligible for prerelease custody sooner.  But because habeas 
is  not  the  proper  avenue  to  challenge  conditions  of  confinement,  the  Court  lacks 
jurisdiction.  Accordingly, the Court will overrule Fortner’s objections, adopt the report 
and recommendation, and deny Fortner’s petition.                          
                          BACKGROUND                                     
    Petitioner Anthony Fortner is currently a federal prisoner detained at the Federal 
Prison Camp in Duluth, MN (“FPC Duluth”).  Before his transfer to FPC Duluth, Fortner was 
incarcerated at a Texas facility for 543 days.  (Pet. Writ Habeas Corpus at 7, Apr. 24, 2024, 
Docket No. 1.)1  In the Texas facility, Fortner alleges he engaged in several evidence-based 
recidivism reduction activities that would allow him to earn First Step Act Time Credits 

(“FTCs”) to reduce his sentence.  (Id.)  Upon arrival at Duluth FPC, however, the Bureau of 
Prisons (“BOP”) declined to apply the FTCs Fortner would have earned at the Texas 
facility.  (Id.)                                                          
    Fortner then brought this petition for a writ of habeas corpus requesting the Court 

award him between 170 and 180 FTC days from his time spent in the Texas facility.  (Id. 
at 22.)  Magistrate Judge Leo I. Brisbois issued a report and recommendation (“R&R”) 
recommending  the  Court  dismiss  Fortner’s  petition  without  prejudice  for  lack  of 

jurisdiction.  (R. & R. at 6, July 26, 2024, Docket No. 11.)   In doing so, the Magistrate Judge 
noted that any FTCs over 365 days would only accelerate the date by which Fortner would 
become  eligible  for  prerelease  custody.    (Id.  at  1.)    Thus,  Fortner’s  claim  actually 
challenged his conditions of confinement, which under Eighth Circuit precedent does not 

confer jurisdiction on the Court in writs of habeas corpus.  (Id. at 3.)  Fortner filed specific 
objections to the R&R, primarily contesting the Magistrate Judge’s legal determination 
that the Court lacks jurisdiction to hear the writ.  (Mot. De Novo Review at 8, Sept. 11, 
2024, Docket No. 14.)2                                                    




    1 The Court cites to the ECF page numbers.                           
    2 Though labeled as a motion for de novo review, the Court construes Fortner’s motion as 
an objection to the R&R.                                                  
                           DISCUSSION                                    
I.   STANDARD OF REVIEW                                                   
    After a magistrate judge files an R&R, a party may file “specific written objections 

to the proposed findings and recommendations.”  Fed. R. Civ. P. 72(b)(2).  “The objections 
should specify the portions of the magistrate judge’s report and recommendation to 
which objections are made and provide a basis for those objections.”  Mayer v. Walvatne, 

No. 07-1958,
2008 WL 4527774
, at *2 (D. Minn. Sept. 28, 2008).  For dispositive motions, 
the Court reviews de novo a “properly objected to” portion of an R&R.  Fed. R. Civ. P. 
72(b)(3).  When reviewing a properly objected to portion of an R&R, the Court will review 
the case from the start, as if it is the first court to review and weigh in on the issues.  See 

Salve  Regina  Coll.  v.  Russell,
499 U.S. 225, 238
  (1991)  (“When de  novo review  is 
compelled, no form of appellate deference is acceptable.”).  “Objections which are not 
specific but merely repeat arguments presented to and considered by a magistrate judge 
are not entitled to de novo review, but rather are reviewed for clear error.”  Montgomery 

v. Compass Airlines, LLC,
98 F. Supp. 3d 1012, 1017
 (D. Minn. 2015).      
    A document filed by a pro se litigant is to be liberally construed and must be held 
to a less stringent standard than formal pleadings drafted by lawyers.  Erickson v. Pardus,
551 U.S. 89, 94
 (2007).  The Eighth Circuit has been willing to liberally construe otherwise 

general pro se objections to R&Rs and to require de novo review of all alleged errors.  See 
Belk v. Purkett,
15 F.3d 803, 815
 (8th Cir. 1994).  However, “pro se litigants are not excused 
from failing to comply with substantive and procedural law.”  Burgs v. Sissel,
745 F.2d 526, 528
 (8th Cir. 1984).                                                      

    Because  Fortner  makes  specific  objections  to  the  Magistrate  Judge’s 
characterization of the claim, the Court will review the R&R de novo.     
II.  ANALYSIS                                                             
    Under the First Step Act, prisoners may reduce their sentence up to twelve months 

by earning time credits through evidence-based recidivism reduction programming.  See
18 U.S.C. § 3624
(g)(3).3  Beyond those twelve months, however, prisoners may only earn 
credits to expedite their eligibility for prerelease custody (i.e., in a residential reentry 
center or in home confinement).  See
18 U.S.C. § 3632
(d)(4)(C) (referencing
18 U.S.C. § 3624
(g)).                                                                 
    Here, Fortner has already earned, and the BOP has applied, the twelve-month 
reduction to his sentence.  (See Pet. Writ Habeas Corpus at 13.)  Therefore, even if the 

contested 543 days from his incarceration in Texas were added to his accrued FTCs, it 
would serve only to expedite his eligibility for prerelease custody, not reduce his overall 
sentence.                                                                 




    3 See also Evidence-based Recidivism Reduction (EBRR) Programs and Productive Activities 
(PA),         Federal          Bureau          of          Prisons,       
https://www.bop.gov/inmates/fsa/docs/evidence_based_recidivism_reduction_programs.pdf 
(summarizing  various  educational,  vocational,  and  substance  abuse  offerings  available  to 
prisoners through the Bureau of Prisons).                                 
    The dispositive question is whether Fortner may petition the Court via a writ of 
habeas corpus to expedite his prerelease custody.  The Magistrate Judge found he could 

not and recommended dismissing for lack of jurisdiction.                  
    Federal courts have jurisdiction to hear habeas petitions concerning the “fact or 
length of the confinement” but, at least in the Eighth Circuit, lack jurisdiction to hear 
“conditions-of-confinement” claims via habeas.  Spencer v. Haynes,
774 F.3d 467, 470
 (8th 

Cir. 2014).  Here, Fortner does not contend he is eligible for early release from BOP 
custody.  He argues only that the characterization of that custody—from a prison setting 
to prerelease custody—should be changed earlier because of his accrual of FTCs.  But 

because it sits in the Eighth Circuit and is not bound by out-of-circuit cases, the Court lacks 
jurisdiction to hear such claims in a habeas petition.  See Johnson v. Birkholz, No. 21-2017,
2022 WL 3135304
, at *2 (D. Minn. Aug. 5, 2022) (collecting cases).        
    When a pro se litigant improvidently brings a conditions-of-confinement claim as 

a habeas petition, the Court may either dismiss without prejudice or obtain consent from 
the pro se litigant to recharacterize his claims.  Spencer,
774 F.3d at 471
.  As the R&R 
rightly noted, if the Court were to recharacterize the habeas petition, it would have to 
dismiss the resulting civil case for failure to exhaust administrative remedies.4  See 42 



    4 Fortner cites to a district court case from New Jersey that “excused” the requirement to 
exhaust administrative remedies for habeas petitions.  Gallo v. Ortiz, No. 20-16416,
2021 WL 571600
, at *4 n.8 (D.N.J. Feb. 16, 2021).  However, the Court would necessarily have to 
recharacterize Fortner’s claims based on conditions of confinement, so caselaw on waiving 
exhaustion for habeas petitions (even if it were binding on the Court) does not apply. 
U.S.C. § 1997e(a) (“No action shall be brought with respect to prison conditions under 
section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, 

prison, or other correctional facility until such administrative remedies as are available 
are exhausted.”); (Pet. Writ Habeas Corpus at 6 (admitting, despite Fortner’s objection he 
exhausted administrative remedies, that administrative appeals were pending but that 
Fortner “expects no different response from his final appeal to the D.C. office”).) 

    While the Court will dismiss Fortner’s action, it will do so without prejudice which 
allows Fortner to refile his claims as a civil action after exhausting all administrative 
remedies.                                                                 

                          CONCLUSION                                     
    Fortner petitioned for a writ of habeas corpus asking the Court to declare his 
eligibility for FTCs allegedly earned while in a Texas federal facility.  However, those 
credits, even if properly earned, would serve only to expedite his eligibility for prerelease 

custody and would not shorten the actual length of his sentence.  The Eighth Circuit has 
determined  that  such  challenges  are  conditions  of  confinement  claims  and 
inappropriately raised in a habeas petition.  Accordingly, the Court lacks jurisdiction over 
Fortner’s claims, so it will overrule Fortner’s objections, adopt the R&R, and dismiss the 

petition.  The Action will be dismissed without prejudice such that Fortner may bring his 
claim as a civil case once all administrative remedies have been fully exhausted.

ORDER

    Based on the foregoing, and all the files, records, and proceedings herein, IT IS 

HEREBY ORDERED that:                                                      
 1.  Petitioner’s Motion for De Novo Review of the Report and Recommendation 
    [Docket No. 14] is OVERRULED;                                        
 2.  The Magistrate Judge’s Report and Recommendation [Docket No. 11] is ADOPTED; 

 3.  Petitioner’s Writ of Habeas Corpus [Docket No. 1] is DENIED; and    
 4.  This Action is DISMISSED WITHOUT PREJUDICE.                         
 LET JUDGMENT BE ENTERED ACCORDINGLY.                                    

DATED:  November 27, 2024            _____s/John R. Tunheim_____          
at Minneapolis, Minnesota.              JOHN R. TUNHEIM                   
                                    United States District Judge

Trial Court Opinion

                   UNITED STATES DISTRICT COURT                          
                      DISTRICT OF MINNESOTA                              
ANTHONY FORTNER,                                                         
                                      Civil No. 24-1496 (JRT/LIB)        
                      Petitioner,                                        

v.                                                                       
                                 MEMORANDUM OPINION AND ORDER            
B. EISCHEN, Warden Bureau of Prisons,  ADOPTING REPORT AND               
                                        RECOMMENDATION                   
                     Respondent.                                         

    Anthony Fortner, Registration Number 11108-040, FPC Duluth, P.O. Box 
    1000, Duluth, MN 55814, pro se Petitioner.                           

    Ana H. Voss and Lucas B. Draisey, UNITED STATES ATTORNEY’S OFFICE, 300 
    South Fourth Street, Suite 600, Minneapolis, MN 55415, for Respondent.  


    Petitioner Anthony Fortner petitions for a writ of habeas corpus to have the First 
Step Act Time Credits for his time spent at a Texas federal facility applied to his sentence 
such that he would become eligible for prerelease custody sooner.  But because habeas 
is  not  the  proper  avenue  to  challenge  conditions  of  confinement,  the  Court  lacks 
jurisdiction.  Accordingly, the Court will overrule Fortner’s objections, adopt the report 
and recommendation, and deny Fortner’s petition.                          
                          BACKGROUND                                     
    Petitioner Anthony Fortner is currently a federal prisoner detained at the Federal 
Prison Camp in Duluth, MN (“FPC Duluth”).  Before his transfer to FPC Duluth, Fortner was 
incarcerated at a Texas facility for 543 days.  (Pet. Writ Habeas Corpus at 7, Apr. 24, 2024, 
Docket No. 1.)1  In the Texas facility, Fortner alleges he engaged in several evidence-based 
recidivism reduction activities that would allow him to earn First Step Act Time Credits 

(“FTCs”) to reduce his sentence.  (Id.)  Upon arrival at Duluth FPC, however, the Bureau of 
Prisons (“BOP”) declined to apply the FTCs Fortner would have earned at the Texas 
facility.  (Id.)                                                          
    Fortner then brought this petition for a writ of habeas corpus requesting the Court 

award him between 170 and 180 FTC days from his time spent in the Texas facility.  (Id. 
at 22.)  Magistrate Judge Leo I. Brisbois issued a report and recommendation (“R&R”) 
recommending  the  Court  dismiss  Fortner’s  petition  without  prejudice  for  lack  of 

jurisdiction.  (R. & R. at 6, July 26, 2024, Docket No. 11.)   In doing so, the Magistrate Judge 
noted that any FTCs over 365 days would only accelerate the date by which Fortner would 
become  eligible  for  prerelease  custody.    (Id.  at  1.)    Thus,  Fortner’s  claim  actually 
challenged his conditions of confinement, which under Eighth Circuit precedent does not 

confer jurisdiction on the Court in writs of habeas corpus.  (Id. at 3.)  Fortner filed specific 
objections to the R&R, primarily contesting the Magistrate Judge’s legal determination 
that the Court lacks jurisdiction to hear the writ.  (Mot. De Novo Review at 8, Sept. 11, 
2024, Docket No. 14.)2                                                    




    1 The Court cites to the ECF page numbers.                           
    2 Though labeled as a motion for de novo review, the Court construes Fortner’s motion as 
an objection to the R&R.                                                  
                           DISCUSSION                                    
I.   STANDARD OF REVIEW                                                   
    After a magistrate judge files an R&R, a party may file “specific written objections 

to the proposed findings and recommendations.”  Fed. R. Civ. P. 72(b)(2).  “The objections 
should specify the portions of the magistrate judge’s report and recommendation to 
which objections are made and provide a basis for those objections.”  Mayer v. Walvatne, 

No. 07-1958,
2008 WL 4527774
, at *2 (D. Minn. Sept. 28, 2008).  For dispositive motions, 
the Court reviews de novo a “properly objected to” portion of an R&R.  Fed. R. Civ. P. 
72(b)(3).  When reviewing a properly objected to portion of an R&R, the Court will review 
the case from the start, as if it is the first court to review and weigh in on the issues.  See 

Salve  Regina  Coll.  v.  Russell,
499 U.S. 225, 238
  (1991)  (“When de  novo review  is 
compelled, no form of appellate deference is acceptable.”).  “Objections which are not 
specific but merely repeat arguments presented to and considered by a magistrate judge 
are not entitled to de novo review, but rather are reviewed for clear error.”  Montgomery 

v. Compass Airlines, LLC,
98 F. Supp. 3d 1012, 1017
 (D. Minn. 2015).      
    A document filed by a pro se litigant is to be liberally construed and must be held 
to a less stringent standard than formal pleadings drafted by lawyers.  Erickson v. Pardus,
551 U.S. 89, 94
 (2007).  The Eighth Circuit has been willing to liberally construe otherwise 

general pro se objections to R&Rs and to require de novo review of all alleged errors.  See 
Belk v. Purkett,
15 F.3d 803, 815
 (8th Cir. 1994).  However, “pro se litigants are not excused 
from failing to comply with substantive and procedural law.”  Burgs v. Sissel,
745 F.2d 526, 528
 (8th Cir. 1984).                                                      

    Because  Fortner  makes  specific  objections  to  the  Magistrate  Judge’s 
characterization of the claim, the Court will review the R&R de novo.     
II.  ANALYSIS                                                             
    Under the First Step Act, prisoners may reduce their sentence up to twelve months 

by earning time credits through evidence-based recidivism reduction programming.  See
18 U.S.C. § 3624
(g)(3).3  Beyond those twelve months, however, prisoners may only earn 
credits to expedite their eligibility for prerelease custody (i.e., in a residential reentry 
center or in home confinement).  See
18 U.S.C. § 3632
(d)(4)(C) (referencing
18 U.S.C. § 3624
(g)).                                                                 
    Here, Fortner has already earned, and the BOP has applied, the twelve-month 
reduction to his sentence.  (See Pet. Writ Habeas Corpus at 13.)  Therefore, even if the 

contested 543 days from his incarceration in Texas were added to his accrued FTCs, it 
would serve only to expedite his eligibility for prerelease custody, not reduce his overall 
sentence.                                                                 




    3 See also Evidence-based Recidivism Reduction (EBRR) Programs and Productive Activities 
(PA),         Federal          Bureau          of          Prisons,       
https://www.bop.gov/inmates/fsa/docs/evidence_based_recidivism_reduction_programs.pdf 
(summarizing  various  educational,  vocational,  and  substance  abuse  offerings  available  to 
prisoners through the Bureau of Prisons).                                 
    The dispositive question is whether Fortner may petition the Court via a writ of 
habeas corpus to expedite his prerelease custody.  The Magistrate Judge found he could 

not and recommended dismissing for lack of jurisdiction.                  
    Federal courts have jurisdiction to hear habeas petitions concerning the “fact or 
length of the confinement” but, at least in the Eighth Circuit, lack jurisdiction to hear 
“conditions-of-confinement” claims via habeas.  Spencer v. Haynes,
774 F.3d 467, 470
 (8th 

Cir. 2014).  Here, Fortner does not contend he is eligible for early release from BOP 
custody.  He argues only that the characterization of that custody—from a prison setting 
to prerelease custody—should be changed earlier because of his accrual of FTCs.  But 

because it sits in the Eighth Circuit and is not bound by out-of-circuit cases, the Court lacks 
jurisdiction to hear such claims in a habeas petition.  See Johnson v. Birkholz, No. 21-2017,
2022 WL 3135304
, at *2 (D. Minn. Aug. 5, 2022) (collecting cases).        
    When a pro se litigant improvidently brings a conditions-of-confinement claim as 

a habeas petition, the Court may either dismiss without prejudice or obtain consent from 
the pro se litigant to recharacterize his claims.  Spencer,
774 F.3d at 471
.  As the R&R 
rightly noted, if the Court were to recharacterize the habeas petition, it would have to 
dismiss the resulting civil case for failure to exhaust administrative remedies.4  See 42 



    4 Fortner cites to a district court case from New Jersey that “excused” the requirement to 
exhaust administrative remedies for habeas petitions.  Gallo v. Ortiz, No. 20-16416,
2021 WL 571600
, at *4 n.8 (D.N.J. Feb. 16, 2021).  However, the Court would necessarily have to 
recharacterize Fortner’s claims based on conditions of confinement, so caselaw on waiving 
exhaustion for habeas petitions (even if it were binding on the Court) does not apply. 
U.S.C. § 1997e(a) (“No action shall be brought with respect to prison conditions under 
section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, 

prison, or other correctional facility until such administrative remedies as are available 
are exhausted.”); (Pet. Writ Habeas Corpus at 6 (admitting, despite Fortner’s objection he 
exhausted administrative remedies, that administrative appeals were pending but that 
Fortner “expects no different response from his final appeal to the D.C. office”).) 

    While the Court will dismiss Fortner’s action, it will do so without prejudice which 
allows Fortner to refile his claims as a civil action after exhausting all administrative 
remedies.                                                                 

                          CONCLUSION                                     
    Fortner petitioned for a writ of habeas corpus asking the Court to declare his 
eligibility for FTCs allegedly earned while in a Texas federal facility.  However, those 
credits, even if properly earned, would serve only to expedite his eligibility for prerelease 

custody and would not shorten the actual length of his sentence.  The Eighth Circuit has 
determined  that  such  challenges  are  conditions  of  confinement  claims  and 
inappropriately raised in a habeas petition.  Accordingly, the Court lacks jurisdiction over 
Fortner’s claims, so it will overrule Fortner’s objections, adopt the R&R, and dismiss the 

petition.  The Action will be dismissed without prejudice such that Fortner may bring his 
claim as a civil case once all administrative remedies have been fully exhausted.

ORDER

    Based on the foregoing, and all the files, records, and proceedings herein, IT IS 

HEREBY ORDERED that:                                                      
 1.  Petitioner’s Motion for De Novo Review of the Report and Recommendation 
    [Docket No. 14] is OVERRULED;                                        
 2.  The Magistrate Judge’s Report and Recommendation [Docket No. 11] is ADOPTED; 

 3.  Petitioner’s Writ of Habeas Corpus [Docket No. 1] is DENIED; and    
 4.  This Action is DISMISSED WITHOUT PREJUDICE.                         
 LET JUDGMENT BE ENTERED ACCORDINGLY.                                    

DATED:  November 27, 2024            _____s/John R. Tunheim_____          
at Minneapolis, Minnesota.              JOHN R. TUNHEIM                   
                                    United States District Judge

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