UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Humberto Angulo Mero, Plaintiff

v. Case No. 23-cv-155-SM Opinion No.

Warden, FCI Berlin, Defendant

O R D E R

Humberto Angulo Mero (“Mero”) is a federal prisoner

currently being held at the Federal Correctional Institution in

Berlin, New Hampshire. He petitions the court pursuant to

, saying the Bureau of Prisons (“BOP”) has

improperly classified him as “ineligible” to apply time credits

he has earned under the First Step Act and, therefore,

incorrectly calculated his projected release date. He seeks an

order directing the BOP to properly account for those time

credits and to amend his projected release date by one year.

The government moves to dismiss Mero’s petition, asserting

that it fails to state any viable claims. Mero has not

responded, likely because he realizes those claims are now moot.

For the reasons discussed, the government’s motion to dismiss is

granted. Discussion

Mero is citizen of Ecuador, currently serving a 98-month

term of imprisonment, with no term of supervision. He is the

subject of an Immigration and Customs Enforcement (“ICE”)

detainer that was lodged against him in July of 2019. With the

benefit of good time credits, his anticipated “Final Statutory

Release Date” is September 24, 2025. See Sentence Monitoring

Computation Data (document no. 5-3) at 1. None of that is in

dispute.

In his petition, Mero asserts that the BOP is improperly

preventing him from applying earned FSA time credits toward

“early release” because he is subject to an ICE detainer. 1 While

that was once the case, it is no longer true. As discussed in

several prior orders of this court, the BOP was, for a time,

precluding inmates subject to ICE detainers from applying earned

FSA time credits toward early release to supervision. But, on

February 6, 2023, the BOP amended its procedures for

implementing the First Step Act. Among other things, it removed

language from the prior policy that prohibited prisoners subject

1 Because Mero’s petition is unclear, the court will assume that he is challenging his eligibility for early release to both supervision and prerelease custody.

2 to ICE detainers from applying FSA time credits toward an early

release to supervision. See U.S. Dept. of Justice, Bureau of

Prisons, Program Statement 5410.10 CN-1 at 2 (Feb. 6, 2023). 2

The same is true with respect to inmates subject to

detainers seeking early release to prerelease custody. On March

10, 2023, the BOP modified its position again, this time

determining that inmates subject to detainers (but not final

orders of removal) could apply FSA time credits toward

prerelease custody. See U.S. Dept. of Justice, Bureau of

Prisons, Program Statement 5410.10 CN-2 (March 10, 2023).

Subsequently, the BOP clarified that change in policy with an

internal memorandum, “advising that FSA time credits will be

applied in all cases consistent with

(g),

including individuals with unresolved pending charges and/or

detainers.” See Oprea v. Warden, FCI Berlin, No. 23-cv-141-SM,

Affidavit of Robert Rouleau (document no. 9-1) at para. 17.

And, on June 13, 2023, the BOP issued “Guidance Regarding the

Application of First Step Act Earned Time Credits to Pre-release

Custody for Individuals with Detainers or Unresolved Pending

Charges.”

at para. 18.

2 Parenthetically, the court notes that because Mero was not sentenced to serve a term of supervised release, he cannot be released early to supervision. See

(g)(3). See also

(d).

3 Consequently, otherwise qualified inmates who are subject

to ICE detainers (but not final orders of removal) are now

permitted to apply earned FSA time credits toward early release

to prerelease custody and supervised release. See, e.g., Bello-

Arias v. Warden, FCI Berlin,

,

, at

*1 (D.N.H. Apr. 21, 2023); Portocarrero Montano v. Warden, FCI

Berlin,

,

, at *1 (D.N.H. May 15,

2023). See generally

(d)(4)(E)(i).

Conclusion

In light of the recent BOP policy changes, Mero’s petition

for habeas corpus relief is moot. The government’s motion to

dismiss (document no. 5) is granted and the petition (document

no. 1) is dismissed. The Clerk of Court shall enter judgment in

accordance with this order and close the case.

SO ORDERED.

____________________________ Steven J. McAuliffe United States District Judge

August 14, 2023

cc: Humberto Angulo Mero, pro se Terry L. Ollila, AUSA

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