First off, I apologize for the delay. I had another brain fart and send this post to the wrong email, so that is the reason for the delay from yesterday. As previously mentioned, one court in Illinois has denied the opportunity to correct the good time fix by stating that it is not in effect until at least July. We disagree with that. So we have prepared a sample motion for people to file with the district court in the district in which you are PRESENTLY LOCATED, not the district in which you were sentenced.
However, here is the catch. It is really only for people whose current release date falls somewhere between now and July. Anybody later than that can go through the administrative remedy process to try and resolve it, but those with release dates before July would not have adequate time to complete the process. So we are tending to focus on those inmates first.
Unfortunately, Corrlinks is very limited and so we cannot format the motion properly. However, we are providing the basics for it and somebody around your institution should be able to help properly format it. All you need to do is fill in the blanks. In the conclusion, there is a blank where you would put the total number of days you are expecting. To calculate this, take the number of years (not months) you were sentenced to and multiply it by 7. If it is a partial year, it is done the same way, BUT, you would have to round down. Therefore, a sentence of 120 months would be 10 years. 10 x 7 = 70 days. A sentence of 128 months is 10.67 years. 10.67 x 7 = 74.96 days or just 74 days. Be advised though we are not attorneys, paralegals or anything of that nature. We are in the same boat as you and just trying to help others get what they deserve. We are in the process of putting together an actual form motion your family members can print off and mail you to fill out and submit. We hopefully will be posting the link to it in our Friday post.
IN THE UNITED STATES DISTRICT COURT
FOR THE __ DISTRICT OF _____
(YOUR WARDEN’S NAME), WARDEN
(YOUR INSTITUTION NAME
MOTION FOR AWARD OF GOOD TIME UNDER 28 USC SECTION 2241
Comes now, __________, Petitioner, filing this motion pursuant to 28 USC section 2241 for the extra seven days of good time per year as required under the First Step Act of 2018 section 102(b)(1). As this is a challenge to the execution of a sentence, how good time is calculated, rather than to the sentence’s validity, section 2241 is properly invoked, Wilkinson v Dotson, 544 US 74, 79 (2005). As Petitioner is a pro se litigant, his (her) motion is to be liberally construed along any avenue providing relief, Estelle v Gamble, 429 US 97, 106 (1976).
In the First Step Act of 2018, section 102(b)(1)(A), Congress amended 18 USC section 3624(h):
(i) 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,”; and
(ii) by striking “credit for the last year or portion of a year of the term of imprisonment shall be prorated and credited within the last six weeks of the sentence” and inserting “credit for the last year of a term of imprisonment shall be credited on the first day of the last year of the term of imprisonment”.
This alteration was done to stop the strange method of calculation that the BOP employed, effectively leaving the average inmate with 47, rather than 54, good time days each year. Congress made clear that this change was to be implemented immediately.
Despite this, the BOP has seized on the placement of this provision to argue that it need not be implemented until the Attorney General has finished the creation of the risk assessment at some indeterminate point in the future, according to a BOP memorandum. Petitioner is currently serving a term of _ months, and is scheduled presently to be released on ______________________, 2019. If he (she) waits on the BOP to recalculate his (her) term at the conclusion of the announced period, he (she) will not receive the good time that Congress intended him (her) to have, as he (she) will already have been released.
Petitioner, not having enough time to go through the remedy process, now comes to this Honorable Court.
EXHAUSTION OF REMEDIES
While exhaustion of remedies is usually necessary before seeking recourse, it is not necessary if the matter involves only a question of law, Weinbarger v Salfi, 422 US 749, 800 (1975). Here the BOP has created a general policy contrary to law, and the purpose of exhaustion will not be served, Wilson v Layne, 526 US 603, 617 (1999). Those, like Petitioner, who are affected by the delay, do not have enough time to litigate fully, and those who have time to go through the process can simply await the delay. This is a problem that will repeat, affecting numerous inmates, yet evading review, FEC v Wis Right to Life, Inc., 552 US 449, 462 (2007). Even though Petitioner could receive financial damages-in theory-to compensate his (her) loss of liberty, this is inferior to not being illegally restrained at all.
According to a memorandum from the BOP:
Section 102(b)(2) of the law states “Effective Date.-The 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.”
While this date does exist in the law, (b)(1)(A) contains its own instruction, modifying an existing, standing requirement for the BOP’s duty to calculate each offender’s good time. The BOP’s current interpretation of this law essentially nullifies the entire first clause for any offender who will be released before the BOP creates this new system.
While the new law is not a model of perfect drafting, the presence of two different time frames for two different programs speaks strongly against the interpretation afforded the new law by the BOP. It is generally presumed that when Congress uses different language in different sections, this means that these sections are to be interpreted differently, Loughrin v United States, 134 S. Ct. 2384, 2390 (2014).
The recalculation of good time is a purely ministerial task which the BOP was already engaging in long before the new law took effect. This only affected how they calculated it, and it is clearly, by its plain language, to be applied immediately; the BOP clearly still has to calculate good time under 18 USC section 3624(b). Unlike section (g) of the First Step Act of 2018, which is created from scratch, and, thus, needs time to be implemented, section (b) of the act should only require a small modification to an existing computer program. Since it is not connected to the recidivism reducing program, there is clearly no need to wait to implement it.
Worse, this renders a portion of the law to be surplusage, at least temporarily, which courts are to avoid, if at all possible, Regions Hospital v Shalala, 522 US 448, 467 (1998).
All of this speaks against the BOP’s current policy. Congress’ intent is clear, and the BOP is to follow it, Chevron USA, Inc v Natural Res Def Council, 467 US 837, 842-43 & n9 (1984). Even were we to pretend that this is the actual reading of the law, applying it to its terms leads to a result contrary to the intent of Congress, and thus must be avoided, Edward J. DeBartolo Corp. v Florida Gulf Coast Building & Constr. Trades Council, 485 US 568, 575 (1988). If there were any doubt about this, the expressions of disbelief and confusion among members of Congress have displayed upon learning of the BOP’s new policies regarding good time confirm it. Members of Congress intended to correct the longstanding refusal to credit inmates with the full amount of good time they were entitled to, not to give them license to continue to refuse to do what Congress has instructed them to do.
Based on this, Petitioner respectfully requests this Honorable Court to order the BOP to credit the extra _ days the law requires, as well as any other relief that this Court finds is necessary.
Respectfully submitted this _ day of _, 2019.
(Your Register Number)
(Your Institution Name)
(Your Institution Address)
(Your Institution City, State Zip)