UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Dione Taylor, Petitioner

v. Case No. 23-cv-150-SM Opinion No.

Warden, FCI Berlin, Respondent

O R D E R

Dione Taylor is a federal prisoner currently being held at

the Federal Correctional Institution in Berlin, New Hampshire.

Pursuant to

, he petitions the court to direct

the Bureau of Prisons (“BOP”) to amend his projected release

date to account for time credits he has earned under the First

Step Act. Because there are no genuinely disputed material

facts and because, as a matter of law, Taylor is not entitled to

the relief he seeks, the government’s motion for summary

judgment is granted.

Background

There are two ways by which inmates serving federally-

imposed sentences may reduce the amount of time they must serve

in prison. Those serving a term of imprisonment greater than one year may earn “good time” credits for “exemplary compliance

with institutional disciplinary regulations.”

(b)(1). Eligible inmates may also earn “time credits” under

the First Step Act for the successful completion of “evidence-

based recidivism reduction programming or productive

activities.”

(d)(4)(A). This case involves the

latter.

Taylor is currently serving a 120-month term of

imprisonment, to be followed by a three-year term of supervised

release. With the benefit of good time credits, his anticipated

“Final Statutory Release Date” is February 24, 2025. See

Sentence Monitoring Computation Data (document no. 5-1) at 5 of

26. He does not dispute that calculation. He has earned a

number of FSA time credits, 365 of which may (potentially) be

applied toward his early transfer and supervised release. See

FSA Time Credit Assessment as of March 25, 2023 (document no. 5-

1) at 7 of 26. See also

(g)(3) (providing

that the BOP may apply no more than 12 months of earned FSA time

credits to advance an inmate’s date of release from prison to

supervised release).

At the moment, however, Taylor is not eligible to apply

earned FSA time credits toward early release because he has,

2 since at least July of 2020, consistently been determined to

pose a “high risk” of recidivism. See Inmate History – Fist

Step (document no. 5-1) at 11-12 of 26. See also

(g)(1)(D) (only inmates determined to be a “minimum” or

“low” risk to recidivate are eligible for early release).

Indeed, because of Taylor’s elevated recidivism risk, the BOP

has not calculated a “projected” early release date for him.

See BOP Program Statement 5410.01, First Step Act of 2018 – Time

Credits: Procedures for Implementation of

(d)(4), Section 10(c), at 16 (“Medium and High PATTERN risk

inmates may earn FTC, but will not receive an estimated FSA

[Projected Released Date]”).

Although his petition is not entirely clear, if liberally

construed it challenges the BOP’s determination that he is

currently “ineligible” under the First Step Act to apply his

earned time credits toward early release. He claims that “if

his FSA time credits were applied, he should be transferred to

prerelease custody in 2023.” Preliminary Review and Order

Directing Service (document no. 2) at 1. See also Exhibit 1 to

Petition (document no. 1-1) at 1 (in which Taylor asserts that

proper calculation and application of his FSA time credits would

result in his “immediate release”).

3 Discussion

Taylor’s petition fails for several reasons. First, he has

failed to fully and properly exhaust available prison

administrative remedies relating to his FSA status. See

Affidavit of Maury Yeakel, Supervisory Correctional Systems

Supervisor (document no. 5-1) at 1, para. 16 (“I reviewed SENTRY

administrative remedy records pertaining to Petitioner.

Petitioner used the administrative remedy process in the past.

However, he has not filed any Requests for Administrative Remedy

or Administrative Appeals related to his risk assessment,

eligibility, or calculation/application of FSA time credits.”).

And, barring unusual circumstances not alleged here, claims that

have not been fully and properly exhausted are subject to

dismissal. See generally Gonzalez v. Yates,

(E.D. Ark. April 12, 2023) (noting that a prisoner may be

excused from exhausting administrative remedies if his or her

claims raise only legal issues (e.g., proper interpretation of

the FSA) or if the prisoner is near the end of his or her term

of imprisonment and lacks sufficient time to properly exhaust).

But, even if Taylor had fully and properly exhausted his

claims (or if he were excused from doing so because his petition

raises only a legal challenge to the BOP’s interpretation of the

FSA), it is plain that he is not entitled to the relief he

4 seeks. As a preliminary matter, the court notes that Taylor

says he has accrued 2,144 program days under the First Step Act.

See Petition (document no. 1) at para. 13. That appears to be

incorrect. It is, perhaps, because that total impermissibly

takes into account programs in which Taylor participated prior

to the effective date of the First Step Act. See

(d)(4)(B)(i) (“A prisoner may not earn time credits under

this paragraph for an evidence-based recidivism reduction

program that the prisoner successfully completed prior to the

date of enactment of this subchapter.”). See also Exhibit to

Petition (document no. 1-1) at 2 (noting a “start” date of

October 17, 2016 for the accrual of “program days”). The First

Step Act was enacted into law on December 21, 2018. At the

earliest, then, inmates could only begin to accrue “program

days” (and FSA time credits) starting on that date. See

(b)(2).

According to the BOP’s most recent calculation (which

properly begins on December 21, 2018), Taylor has accrued 1428

program days. Given Taylor’s assessed recidivism risk and the

rate at which he can accumulate FSA time credits, that means he

has earned 470 FSA time credits. See FSA Time Credit Assessment

(March 23, 2023) (document no. 5-1) at 7 of 26. See generally

(d)(4)(A) (providing that a prisoner shall earn

5 10 days of time credits for every 30 days of successful

participation in recidivism reduction programming; prisoners

(unlike Taylor) who are determined to be a minimum or low risk

for recidivating shall earn an additional 5 days of time credits

for every 30 days of successful participation).

Taylor acknowledges (and does not challenge) the fact that

none of his periodic recidivism risk evaluations has placed him

in either the “minimum” or “low” risk categories. See Petition

at para. 13. In fact, dating as far back as July of 2020, all

of his routine assessments have placed him in the “High Risk

Recidivism Level.” See Inmate History – First Step (document

no. 5-1) at 11-12 of 26. Consequently, although Taylor has been

able to earn FSA time credits, he is not (currently) eligible to

apply those time credits. See

(g)(1)(D)(ii) (to

be eligible for early release to supervised release based upon

earned FSA time credits, “the prisoner [must have] been

determined under the System to be a minimum or low risk to

recidivate pursuant to the last reassessment of the prisoner.”).

The requirements for early release to prerelease custody are

similar, but slightly more stringent. See

(g)(1)(D)(i)(I) and (II).

6 Should Taylor subsequently be determined to be a minimum or

low recidivism risk, he will then be able to apply earned FSA

time credits toward early release. At this time, however, the

BOP has properly determined that Taylor is not eligible to do

so. See Sentencing Monitoring Computation Data (document no. 5-

1) at 5 (“FSA Eligibility Status is: Ineligible”).

Finally, even if Taylor’s recidivism risk assessment were

sufficiently low to permit him to apply earned time credits

toward early release, he could not yet do so. With the benefit

of accrued good time credits, his anticipated release date is

February 24, 2025. As noted above, Taylor has earned 470 FSA

time credits. But, as of the date on which he filed his habeas

corpus petition (February 21, 2023), Taylor had 734 days

remaining on his prison sentence. Consequently, he is not yet

entitled to apply any FSA time credits toward prerelease custody

or supervised release and his challenge to the BOP’s calculation

of his release date is premature. See

(g)(1)(A)

(“This subsection applies in the case of a prisoner who . . .

has earned time credits under the risk and needs assessment

system developed under subchapter D . . . in an amount that is

equal to the remainder of the prisoner’s imposed term of

imprisonment.”). See also

(b).

7 In short, eligible inmates can accumulate FSA time credits

throughout their incarceration, but they may only apply those

accumulated time credits toward early release once they are

sufficient in number to meet or exceed the time remaining on the

inmate’s imposed term of imprisonment and the inmate’s assessed

risk of recidivism is sufficiently low. Taylor meets neither of

those prerequisites and his claimed entitlement to “immediate

release” is without merit.

Parenthetically, the court notes that even if Taylor fails

to lower his risk of recidivism to a “minimum” or “low” level,

he might still have an avenue of relief. If he meets the

requirements of

(g)(1)(D)(i)(II)(aa) through

(cc), Taylor could petition the warden to exercise his

discretion to apply Taylor’s earned FSA time credits toward

early release to prerelease custody or supervised release. An

inmate initiates that process by “submitting a BP-A0148, Inmate

Request to Staff, during their regularly scheduled Program

Review.” BOP Program Statement 5410.01, First Step Act of 2018

– Time Credits: Procedures for Implementation of

(d)(4), Section 10(c), at 16.

8 Conclusion

For the foregoing reasons, as well as those set forth in

the government’s memorandum, there are no genuinely disputed

material facts and the government is entitled to judgment as a

matter of law with respect to all claims advanced in Taylor’s

petition. Accordingly, the government’s Motion for Summary

Judgment (document no. 5) is granted and Taylor’s Petition for

Relief under § 2241 (document no 1) is denied.

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

June 14, 2023

cc: Dione Taylor, pro se Seth R. Aframe, Esq.

9