United States District Court, D. Alaska
ORDER
H.
Russel Holland United States District Judge
Motion
For Habeas Corpus relief and Interim Conditional Release
Defendant
Guillermo Murgia moves for habeas corpus relief and interim
conditional release.[1] This motion is opposed, and plaintiff the
United States of America cross-moves to dismiss Murgia's
habeas petition.[2] The cross-motion is opposed by
Murgia.[3] Oral argument was not requested and is not
deemed necessary.
Background
Murgia
was convicted of a drug conspiracy and was originally
sentenced to 135 months.[4] On June 16, 2015, the court reduced
Murgia's sentence to 120 months.[5] Murgia represents that he is
presently in prerelease custody and is being supervised on
electronic monitoring in Anchorage, Alaska. Plaintiff offers
evidence that Murgia is presently in the custody of the
Residential Reentry Management office in Seattle,
Washington.[6] Murgia is currently scheduled to be
released from custody on June 17, 2019.
Pursuant
to 28 U.S.C. § 2241, Murgia now moves for habeas relief,
arguing that he is entitled to have his good time credits
calculated under the First Step Act's amendment to 18
U.S.C. § 3624(b). Murgia contends that under such a
calculation his release date would have been April 8, 2019.
Discussion
As an
initial matter, Murgia should have filed a habeas petition as
an independent civil suit rather than filing a motion in his
underlying criminal case. See Riddle v. Dyche, 262
U.S. 333, 335-336 (1923) (“[t]he writ of habeas corpus
is not a proceeding in the original criminal prosecution, but
an independent civil suit”). Secondly, “petitions
that challenge the manner, location, or conditions of a
sentence's execution[, ]” such as Murgia has
brought here, “must be brought pursuant to § 2241
in the custodial court.” Hernandez v.
Campbell, 204 F.3d 861, 864 (9th Cir. 2000). The only
evidence before the court is that Murgia is in custody in
Seattle, Washington, which means his § 2241 petition
should have been brought in the Western District of
Washington, not the District of Alaska. Although Murgia
contends that he is currently in Anchorage, he has offered no
evidence to support this contention. Moreover, “the
proper respondent” to a habeas petition challenging a
petitioner's present physical confinement “is the
warden of the facility where the prisoner is being
held[.]” Rumsfeld v. Padilla, 542 U.S. 426,
435 (2004). Even assuming Murgia is in Anchorage as he
contends, the United States is not the proper respondent. For
all of these reasons, Murgia's habeas motion must be
denied. But even assuming that Murgia's habeas motion was
properly before this court, [7] the court would deny the motion
for the reasons set out below.
Prior
to December 21, 2018, Section 3624(b), the good time credit
statute, provided that “[a] federal prisoner may
receive ‘up to fifty-four days at the end of each year
of the prisoner's term of imprisonment, beginning at the
end of the first year of the term,' subject to the
BOP's determination that ‘during that year, the
prisoner has displayed exemplary compliance with
institutional disciplinary regulations.'”
Pacheco-Camacho v. Hood, 272 F.3d 1266, 1267 (9th
Cir. 2001) (quoting 18 U.S.C. § 3624(b)(1)). Although
the statute made reference to 54 days of good time credit,
for years, the BOP interpreted the good time credit statute
to permit a maximum credit of 47 days per year, rather than
54 days per year. This was because the BOP counted the 54
days against time actually served, as opposed to the sentence
imposed. Section 102(b) of the First Step Act
“fixes” this problem by amending Section
3624(b)(1) “by striking ‘, beyond the time
served, of up to 54 days at the end of each year of the
prisoner's term of imprisonment, beginning at the end of
the first year of the term,' and inserting ‘of up
to 54 days for each year of the prisoner's sentence
imposed by the court[.]'”[8] In other words, the First
Step Act amendment clarifies that the 54 days should be
calculated based on the sentence imposed by the court, not
the time actually served.
Murgia
argues that this amendment to the good time credit statute
became effective on the date the First Step Act was signed
into law, December 21, 2018. Plaintiff disagrees and argues
that there is a delayed effective date for this amendment.
“‘In
the absence of an express provision in the statute itself, an
act takes effect on the date of its enactment.'”
United States v. Shaffer, 789 F.2d 682, 686 (9th
Cir. 1986) (quoting United States v. Clizer, 464
F.2d 121, 123 n.2 (9th Cir. 1972)). Determining whether there
is an express provision in the First Step Act that applies to
the good time credit amendment is a question of statutory
interpretation. “‘The preeminent canon of
statutory interpretation requires [the court] to presume that
[the] legislature says in a statute what it means and means
in a statute what it says there. Thus, [the court's]
inquiry begins with the statutory text, and ends there as
well if the text is unambiguous.'” Satterfield
v. Simon & Schuster, Inc., 569 F.3d 946, 951 (9th
Cir. 2009) (quoting McDonald v. Sun Oil Co., 548
F.3d 774, 780 (9th Cir. 2008)).
Title 1
of the First Step Act, entitled “Recidivism Reduction,
” consists of seven sections.[9] The amendment at issue here
is found in Section 102 of Title 1. More specifically, the
amendment at issue here is found in Section 102(b). Section
102(b) is entitled “Prerelease Custody” and it
has three subsections: 1) In General, 2) Effective Date, and
3) Applicability.[10] Subsection 102(b)(1) in turn has two
additional subsections. Subsection 102(b)(1)(A) sets out the
amendment to the good time credit statute discussed
above.[11]Subsection 102(b)(1)(B) sets out the new
subsection (g) being added to 18 U.S.C. §
3624.[12]Subsection (g) is entitled
“Prerelease Custody or Supervised Release for Risk and
Needs Assessment System Participants.”[13] Subsection
(g) involves a new recidivism program, the risk and needs
assessment system, and the Attorney General was given 210
days after the enactment of the First Step Act in which to
release a completed risk and needs assessment system. 18
U.S.C. § 3632(a). 210 days after December 18, 2018 is
July 19, 2019.
Subsection
102(b)(2), the “Effective Date” subsection,
provides that “[t]he amendments made by this subsection
shall take effect beginning on the date that the Attorney
General completes and releases the risk and needs assessment
system under subchapter D of chapter 229 of title 18, United
States Code, as added by section 101(a) of this
Act.”[14] This language is
unambiguous.[15] It plainly states that the amendments in
Section 102(b) do not take effect until the Attorney General
releases the risk and needs assessment system, which is due
on July 19, 2019. Other district courts around the country
have reached the same conclusion. See United States v.
Richards, No. 3:05-cr-00185, 2019 WL 2008572, at *4
(M.D. Tenn. May 7, 2019) (“[a]lthough Richards argues
that the effective-date provision does not apply to the
good-time fix, virtually every court in the country
confronted with the question has concluded that it does and
that, as a result, motions seeking relief under the FSA now
are premature”); United States v. Sirois, No.
1:11-cr-00206-JAW-2, 2019 WL 1923632, at *2 (D. Me. April 30,
2019) (citation omitted) (“the good time credit
provisions of the First Step Act are not yet effective”
because “Section 102(b)(2) of the Act specifically
provides that the amendments made in subsection 102(b) of the
Act take effect only when the Attorney General completes the
‘risk and needs assessment system' required by
Section 101(a) of the Act”); Crittendon v.
White, No. 1:19-cv-669, 2019 WL 1896501, at *1 (M.D. Pa.
April 29, 2019) (good time credit amendment does “not
take effect until the Attorney General completes the
‘risk and needs assessment system'”);
United States v. Yates, No. 15-40063-01-DDC, 2019 WL
1779773, at *3 (D. Kan. April 23, 2019) (“[c]ourts have
concluded that the plain language of § 102 of the First
Step Act mandates the change to good-time credit calculations
after the Attorney General releases the risk and needs
assessment system mandated by the Act”); Matthews
v. Williams, 4:19CV5182019 WL 1639776, at *2 (N.D. Ohio,
April 16, 2019) (citation omitted) (“[t]he First Step
Act is explicit about the effective date of the new good-time
provisions[, ]” which is on the date that “the
Attorney Genreal completes and releases the risk and needs
assessment system”); United States v. Scouten,
No. 13-CR-20S, 2019 WL 1596881, at *1 (W.D.N.Y. April 15,
2019) (citation omitted) (“[b]y the plain terms of the
Act, the provision is not effective until the Attorney
General completes the risk and needs assessment
system”); Johnson v. Bureau of Prisons, No.
4:19-cv-224-O, 2019 WL 1569360, at *1 (N.D. Tex. April 11,
2019) (“the good-time-credit change will not take
effect until the attorney general completes the ‘risk
and needs assessment system' required to be completed
within 210 days after the December 21, 2018 enactment, as
provided by §§ 101(a) and 102(b)(2) of the FSA
2018”); United States v. Parrett, No.
01-CR-168-JPS, 2019 WL 1574815, at *1 (E.D. Wis. April 11,
2019) (“the Act's good-time provisions have not yet
taken effect; before they do, the Attorney General must
complete the ‘risk and needs assessment
system'”); United States v. Powell, No.
5:11-cr-75-JMH-1, 2019 WL 1521972, at *3 (E.D. Ky. April 8,
2019) (provision amending good time credit statute “has
not yet taken effect”); Roy v. United States Bureau
of Prisons, No. 2:19-CV-59-RMP, 2019 WL 1441622, at *1
(E.D. Wash. April 1, 2019) (“[t]he good-time provisions
of the First Step Act . . . did not become effective when the
Act took effect on December 21, 2018”).
Murgia's
arguments that the effective date in Section 102(b)(2) does
not apply to the good time credit amendment are unavailing.
Murgia argues that it makes little sense for there to be a
delayed effective date for the good-time fix because the BOP
could begin calculating good time credit pursuant to the
amendment immediately. While this may be correct, as noted
above, the court must assume that Congress said what it meant
and meant what it said, which was that the Section 102(b)
amendments ...