UNITED STATES DISTRICT COURT                             
                   DISTRICT OF MINNESOTA                                

CHARLES ABIEANGA,                  Case No. 24-CV-3131 (JWB/JFD)        

              Petitioner,                                               

v.                              REPORT AND RECOMMENDATION               

BILLY EISCHEN, Warden FPC Duluth,                                       

              Respondent.                                               


   Under the First Step Act of 2018 (“FSA”), some prisoners may earn time credits 
towards their release from custody or towards sooner placement in prerelease custody by 
participating  in  “evidence-based  recidivism  reduction  programming.”  

(d)(4).  Petitioner  Charles  Abieanga  claims  that  the  Federal  Bureau  of  Prisons 
(“BOP”) has failed to award him with time credits under the FSA for some of the time that 
he has spent in prison, and he has filed a petition for a writ of habeas corpus asking this 
court to direct the BOP to award him with those credits.                  
   That habeas petition is now before the Court pursuant to Rule 4 of the Rules 
Governing Section 2254 Cases in the United States District Courts.1 As a result of that 
review, this Court concludes that Abieanga’s habeas petition should be denied without 
prejudice and this matter should be dismissed.                            

1 Mr. Abieanga’s habeas petition is not brought under 

, but the Rules 
Governing Section 2254 Cases may be applied to any habeas petition. See Rule 1(b). 
   There are two potential problems with Abieanga’s habeas petition and one definite 
problem with the petition:                                                

   The first potential problem is that it is not entirely clear that Abieanga is presenting 
a cognizable claim for habeas relief. As mentioned above, under the FSA, prisoners 
participating in “evidence-based recidivism reduction programs” while in BOP custody 
may earn up to 15 days per month in time credits. See 

(d). Up to 365 days’ 
worth  of  those  time  credits  may  be  applied  towards  reducing  the  prisoner’s  overall 
custodial term, see 

(g)(3), and the remainder may be applied towards 

accelerating the date on which the prisoner becomes eligible for “prerelease custody”—
that is, in a residential reentry center or on home confinement. See 

(d)(4). 
It is not clear from the habeas petition whether Mr. Abieanga has received or anticipates 
receiving the full allotment of FSA time credits that may be applied towards shortening his 
term of imprisonment, but if he does, then the BOP’s failure to award additional time 

credits could only affect the date on which Mr. Abieanga becomes eligible for prerelease 
custody.                                                                  
   “When  a  prisoner  is  not  challenging  either  the  fact  or  the  duration  of  his 
confinement, habeas is not the proper remedy, and the court lacks jurisdiction over his 
claims.” Johnson v. Birkholz, No. 21-CV-2017 (PJS/LIB), 

, at *1 (D. 

Minn. Aug. 5, 2022). A claim that a federal prisoner should sooner be transferred to 
prerelease custody or home confinement amounts only to an attack on the conditions of the 
prisoner’s confinement and therefore is not cognizable on habeas review. See Johnson, 

, at *1 (citing Spencer v. Haynes, 

 (8th Cir. 2014); 
Kruger v. Erickson, 

 (8th Cir. 1996) (per curiam)). Put another way, a 
prisoner may invoke habeas corpus to allege that he should spend less time overall in BOP 

custody, but not to allege that he should serve part of his time in BOP custody at home or 
in an RRC. If Mr. Abieanga is only claiming entitlement to sooner eligibility for prerelease 
custody, then he simply cannot bring his claim through a habeas petition. 
   The second potential problem is that the petition is far from clear that Mr. Abieanga 
is entitled to FSA time credits for the periods he is claiming. The habeas petition appears 
to view the credits as an entitlement—so long as a prisoner is in BOP custody, argues Mr. 

Abieanga, then he entitled to receive FSA time credits. But the FSA itself is perfectly clear 
that a prisoner is entitled to FSA time credits only if (among other conditions) the prisoner 
has  participated  in  “evidence-based  recidivism  reduction  programming  or  productive 
activities.”  

(d)(4).  It  appears  from  the  documents  attached  to  Mr. 
Abieanga’s habeas petition that the BOP failed to award him with time credits for the 

periods at issue because he was not participating in evidence-based recidivism reduction 
programming or productive activities during those periods. See Pet. App’x 1 [Dkt. No. 1-
2]. Never does Mr. Abieanga allege that BOP was mistaken about this and that he was, in 
fact, participating in evidence-based recidivism reduction programming or productive 
activities during these months. But if Mr. Abieanga was not participating in evidence-based 

recidivism reduction programming or productive activities during the months at issue, then 
he would not be entitled to FSA time credits for those months—period. The FSA itself 
could not be clearer about this.                                          
   The exact circumstances concerning why Mr. Abieanga has been denied FSA time 
credits for the months at issue would be clearer if Mr. Abieanga had presented his claims 

to the BOP and exhausted the agency’s administrative-review procedures for those claims. 
Unfortunately,  Mr.  Abieanga  by  his  own  admission  did  not  exhaust  administrative 
remedies for his claims, see Petition at 3 [Dkt. No. 1]—and it is on this basis that denial of 
the habeas petition ultimately is recommended.                            
   The federal habeas corpus statute does not include an exhaustion requirement, see 
generally  

,  but  courts  have  long  required  prisoners  to  exhaust 

administrative remedies made available by the BOP before seeking habeas relief. See 
Mathena v. United States, 

 (8th Cir. 2009); United States v. Chappel, 

  (8th  Cir.  2000)  (per  curiam).  There  are  two  principal  reasons  that 
exhaustion is required. First, if the prisoner is correct that the BOP has acted wrongfully, 
then the BOP may be able to correct that error before habeas litigation ever becomes 

necessary. Second, even if the prisoner’s claim ultimately is denied by the BOP, the 
administrative-review process will cause the petitioner’s claims (and the government’s 
defenses to those claims) to have become better developed before those claims arrive at the 
federal courthouse. This case, in fact, exemplifies why exhaustion of administrative claims 
is required. It is not clear from Mr. Abieanga’s petition or exhibits how many FSA time 

credits he has earned, whether he has a cognizable claim for habeas relief available to him, 
whether he was participating in recidivism-reduction programming during the period at 
issue, or whether another obstacle would have prevented him from earning FSA time 
credits. All of this would have been fleshed out during the administrative-review process, 
if only Mr. Abieanga had seen that process through to its conclusion.     

   To be sure, the exhaustion requirement is somewhat flexible, and courts have the 
discretion to proceed to the merits of a habeas claim in appropriate circumstances despite 
the fact that administrative remedies were not first exhausted. See, e.g., Lueth v. Beach, 

, 797 n.3 (8th Cir. 2007). “When deciding whether to exercise this discretion, 
a court ‘balance[s] the interest of the individual in retaining prompt access to a federal 
forum against countervailing institutional interests favoring exhaustion.” Henderson v. 

Eischen, No. 23-CV-1336, 

, at *1 (D. Minn. June 7, 2023) (quoting 
McCarthy v. Madigan, 

 (1992)).                           
   Mr. Abieanga offers two reasons why the Court should exercise its discretion not to 
require that he first exhaust administrative remedies before pursuing habeas relief in federal 
court, but neither reason is convincing. First, Mr. Abieanga argues that exhaustion would 

be a “futile effort” because his administrative appeal “would be denied by the BOP.” 
Petition at 3. It is true that the futility of an administrative remedy can serve as a basis for 
excusing exhaustion, see Riggan v. Bureau of Prisons, No. 23-CV-3817 (JMB/DTS), 

, at *2 (D. Minn. Jan. 10, 2024), but the mere fact that a prisoner believes that 
the BOP is unlikely to agree with him does not render the pursuit of administrative 

remedies futile.                                                          
   Second, Mr. Abieanga argues that time is of the essence and that, if he were awarded 
the FSA time credits that he believes he deserves, he would be eligible for transfer to 
prerelease  custody  today.  But  as  explained  above,  sooner  eligibility  for  transfer  to 
prerelease custody is not a basis for a cognizable habeas claim, as it relates only to the 
conditions of the prisoner’s confinement rather than the fact of the confinement. Mr. 

Abieanga alleges that his release date is currently scheduled for October 8, 2025, and that 
he is eligible for 75 days of FSA time credits that have not been awarded. See Petition at 7, 
8. Even if every one of those credits could be applied towards shortening Mr. Abieanga’s 
sentence, he would still have nearly a year left to run on that sentence. This is more than 
enough time for Mr. Abieanga to pursue administrative remedies and (if necessary) return 
to federal court in pursuit of habeas corpus relief.                      

   Accordingly, this Court recommends that Mr. Abieanga’s habeas petition be denied 
without prejudice for failure to exhaust administrative remedies.         
                      RECOMMENDATION                                    
   Based on the foregoing, and on all of the files, records, and proceedings herein, IT 
IS HEREBY RECOMMENDED THAT:                                               

   1.   The petition for a writ of habeas corpus of petitioner Charles Abieanga 
        [Dkt. No. 1] be DENIED WITHOUT PREJUDICE.                       
   2.   This matter be DISMISSED.                                       

Dated: September 18, 2024       _s/  John F. Docherty_____________      
                                JOHN F. DOCHERTY                        
                                United States Magistrate Judge          


                           NOTICE                                       

Filing Objections: This Report and Recommendation is not an order or judgment of the 
District Court and is therefore not appealable directly to the Eighth Circuit Court of 
Appeals.                                                                  
Under Local Rule 72.2(b)(1), “a party may file and serve specific written objections to a 
magistrate judge’s proposed finding and recommendations within 14 days after being 
served  a  copy”  of  the  Report  and  Recommendation.  A  party  may  respond  to  those 
objections  within  14  days  after  being  served  a  copy  of  the  objections.  See  Local 
Rule 72.2(b)(2). All objections and responses must comply with the word or line limits set 
forth in Local Rule 72.2(c).                                              

               UNITED STATES DISTRICT COURT                             
                   DISTRICT OF MINNESOTA                                

CHARLES ABIEANGA,                  Case No. 24-CV-3131 (JWB/JFD)        

              Petitioner,                                               

v.                              REPORT AND RECOMMENDATION               

BILLY EISCHEN, Warden FPC Duluth,                                       

              Respondent.                                               


   Under the First Step Act of 2018 (“FSA”), some prisoners may earn time credits 
towards their release from custody or towards sooner placement in prerelease custody by 
participating  in  “evidence-based  recidivism  reduction  programming.”  

(d)(4).  Petitioner  Charles  Abieanga  claims  that  the  Federal  Bureau  of  Prisons 
(“BOP”) has failed to award him with time credits under the FSA for some of the time that 
he has spent in prison, and he has filed a petition for a writ of habeas corpus asking this 
court to direct the BOP to award him with those credits.                  
   That habeas petition is now before the Court pursuant to Rule 4 of the Rules 
Governing Section 2254 Cases in the United States District Courts.1 As a result of that 
review, this Court concludes that Abieanga’s habeas petition should be denied without 
prejudice and this matter should be dismissed.                            

1 Mr. Abieanga’s habeas petition is not brought under 

, but the Rules 
Governing Section 2254 Cases may be applied to any habeas petition. See Rule 1(b). 
   There are two potential problems with Abieanga’s habeas petition and one definite 
problem with the petition:                                                

   The first potential problem is that it is not entirely clear that Abieanga is presenting 
a cognizable claim for habeas relief. As mentioned above, under the FSA, prisoners 
participating in “evidence-based recidivism reduction programs” while in BOP custody 
may earn up to 15 days per month in time credits. See 

(d). Up to 365 days’ 
worth  of  those  time  credits  may  be  applied  towards  reducing  the  prisoner’s  overall 
custodial term, see 

(g)(3), and the remainder may be applied towards 

accelerating the date on which the prisoner becomes eligible for “prerelease custody”—
that is, in a residential reentry center or on home confinement. See 

(d)(4). 
It is not clear from the habeas petition whether Mr. Abieanga has received or anticipates 
receiving the full allotment of FSA time credits that may be applied towards shortening his 
term of imprisonment, but if he does, then the BOP’s failure to award additional time 

credits could only affect the date on which Mr. Abieanga becomes eligible for prerelease 
custody.                                                                  
   “When  a  prisoner  is  not  challenging  either  the  fact  or  the  duration  of  his 
confinement, habeas is not the proper remedy, and the court lacks jurisdiction over his 
claims.” Johnson v. Birkholz, No. 21-CV-2017 (PJS/LIB), 

, at *1 (D. 

Minn. Aug. 5, 2022). A claim that a federal prisoner should sooner be transferred to 
prerelease custody or home confinement amounts only to an attack on the conditions of the 
prisoner’s confinement and therefore is not cognizable on habeas review. See Johnson, 

, at *1 (citing Spencer v. Haynes, 

 (8th Cir. 2014); 
Kruger v. Erickson, 

 (8th Cir. 1996) (per curiam)). Put another way, a 
prisoner may invoke habeas corpus to allege that he should spend less time overall in BOP 

custody, but not to allege that he should serve part of his time in BOP custody at home or 
in an RRC. If Mr. Abieanga is only claiming entitlement to sooner eligibility for prerelease 
custody, then he simply cannot bring his claim through a habeas petition. 
   The second potential problem is that the petition is far from clear that Mr. Abieanga 
is entitled to FSA time credits for the periods he is claiming. The habeas petition appears 
to view the credits as an entitlement—so long as a prisoner is in BOP custody, argues Mr. 

Abieanga, then he entitled to receive FSA time credits. But the FSA itself is perfectly clear 
that a prisoner is entitled to FSA time credits only if (among other conditions) the prisoner 
has  participated  in  “evidence-based  recidivism  reduction  programming  or  productive 
activities.”  

(d)(4).  It  appears  from  the  documents  attached  to  Mr. 
Abieanga’s habeas petition that the BOP failed to award him with time credits for the 

periods at issue because he was not participating in evidence-based recidivism reduction 
programming or productive activities during those periods. See Pet. App’x 1 [Dkt. No. 1-
2]. Never does Mr. Abieanga allege that BOP was mistaken about this and that he was, in 
fact, participating in evidence-based recidivism reduction programming or productive 
activities during these months. But if Mr. Abieanga was not participating in evidence-based 

recidivism reduction programming or productive activities during the months at issue, then 
he would not be entitled to FSA time credits for those months—period. The FSA itself 
could not be clearer about this.                                          
   The exact circumstances concerning why Mr. Abieanga has been denied FSA time 
credits for the months at issue would be clearer if Mr. Abieanga had presented his claims 

to the BOP and exhausted the agency’s administrative-review procedures for those claims. 
Unfortunately,  Mr.  Abieanga  by  his  own  admission  did  not  exhaust  administrative 
remedies for his claims, see Petition at 3 [Dkt. No. 1]—and it is on this basis that denial of 
the habeas petition ultimately is recommended.                            
   The federal habeas corpus statute does not include an exhaustion requirement, see 
generally  

,  but  courts  have  long  required  prisoners  to  exhaust 

administrative remedies made available by the BOP before seeking habeas relief. See 
Mathena v. United States, 

 (8th Cir. 2009); United States v. Chappel, 

  (8th  Cir.  2000)  (per  curiam).  There  are  two  principal  reasons  that 
exhaustion is required. First, if the prisoner is correct that the BOP has acted wrongfully, 
then the BOP may be able to correct that error before habeas litigation ever becomes 

necessary. Second, even if the prisoner’s claim ultimately is denied by the BOP, the 
administrative-review process will cause the petitioner’s claims (and the government’s 
defenses to those claims) to have become better developed before those claims arrive at the 
federal courthouse. This case, in fact, exemplifies why exhaustion of administrative claims 
is required. It is not clear from Mr. Abieanga’s petition or exhibits how many FSA time 

credits he has earned, whether he has a cognizable claim for habeas relief available to him, 
whether he was participating in recidivism-reduction programming during the period at 
issue, or whether another obstacle would have prevented him from earning FSA time 
credits. All of this would have been fleshed out during the administrative-review process, 
if only Mr. Abieanga had seen that process through to its conclusion.     

   To be sure, the exhaustion requirement is somewhat flexible, and courts have the 
discretion to proceed to the merits of a habeas claim in appropriate circumstances despite 
the fact that administrative remedies were not first exhausted. See, e.g., Lueth v. Beach, 

, 797 n.3 (8th Cir. 2007). “When deciding whether to exercise this discretion, 
a court ‘balance[s] the interest of the individual in retaining prompt access to a federal 
forum against countervailing institutional interests favoring exhaustion.” Henderson v. 

Eischen, No. 23-CV-1336, 

, at *1 (D. Minn. June 7, 2023) (quoting 
McCarthy v. Madigan, 

 (1992)).                           
   Mr. Abieanga offers two reasons why the Court should exercise its discretion not to 
require that he first exhaust administrative remedies before pursuing habeas relief in federal 
court, but neither reason is convincing. First, Mr. Abieanga argues that exhaustion would 

be a “futile effort” because his administrative appeal “would be denied by the BOP.” 
Petition at 3. It is true that the futility of an administrative remedy can serve as a basis for 
excusing exhaustion, see Riggan v. Bureau of Prisons, No. 23-CV-3817 (JMB/DTS), 

, at *2 (D. Minn. Jan. 10, 2024), but the mere fact that a prisoner believes that 
the BOP is unlikely to agree with him does not render the pursuit of administrative 

remedies futile.                                                          
   Second, Mr. Abieanga argues that time is of the essence and that, if he were awarded 
the FSA time credits that he believes he deserves, he would be eligible for transfer to 
prerelease  custody  today.  But  as  explained  above,  sooner  eligibility  for  transfer  to 
prerelease custody is not a basis for a cognizable habeas claim, as it relates only to the 
conditions of the prisoner’s confinement rather than the fact of the confinement. Mr. 

Abieanga alleges that his release date is currently scheduled for October 8, 2025, and that 
he is eligible for 75 days of FSA time credits that have not been awarded. See Petition at 7, 
8. Even if every one of those credits could be applied towards shortening Mr. Abieanga’s 
sentence, he would still have nearly a year left to run on that sentence. This is more than 
enough time for Mr. Abieanga to pursue administrative remedies and (if necessary) return 
to federal court in pursuit of habeas corpus relief.                      

   Accordingly, this Court recommends that Mr. Abieanga’s habeas petition be denied 
without prejudice for failure to exhaust administrative remedies.         
                      RECOMMENDATION                                    
   Based on the foregoing, and on all of the files, records, and proceedings herein, IT 
IS HEREBY RECOMMENDED THAT:                                               

   1.   The petition for a writ of habeas corpus of petitioner Charles Abieanga 
        [Dkt. No. 1] be DENIED WITHOUT PREJUDICE.                       
   2.   This matter be DISMISSED.                                       

Dated: September 18, 2024       _s/  John F. Docherty_____________      
                                JOHN F. DOCHERTY                        
                                United States Magistrate Judge          


                           NOTICE                                       

Filing Objections: This Report and Recommendation is not an order or judgment of the 
District Court and is therefore not appealable directly to the Eighth Circuit Court of 
Appeals.                                                                  
Under Local Rule 72.2(b)(1), “a party may file and serve specific written objections to a 
magistrate judge’s proposed finding and recommendations within 14 days after being 
served  a  copy”  of  the  Report  and  Recommendation.  A  party  may  respond  to  those 
objections  within  14  days  after  being  served  a  copy  of  the  objections.  See  Local 
Rule 72.2(b)(2). All objections and responses must comply with the word or line limits set 
forth in Local Rule 72.2(c).