Montoya v. Cox

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
PRESTON PERNELL MONTOYA,
Petitioner,
vs.
J.W. COX, WARDEN, YANKTON
FEDERAL PRISON CAMP;
Respondent.
4:21-CV-04057-KES
REPORT AND RECOMMENDATION
INTRODUCTION
This matter is pending before the court on the pro se habeas petition
pursuant to 28 U.S.C. § 2241 of Preston Pernell Montoya, a person confined at
the Yankton Federal Prison Camp in Yankton, South Dakota. 	See Docket No.
1. 	Now pending before the court is a motion to dismiss by respondent (“the
government”). 	See Docket No. 12. 	Mr. Montoya resists the motion and moves
for emergency release. 	See Docket Nos. 15 & 16. 	This matter was referred to
this magistrate judge for a recommended disposition pursuant to 28 U.S.C.
§ 636(b)(1)(B) and the October 16, 2014, standing order of the Honorable Karen
E. Schreier, district court judge.
FACTS
Mr. Montoya was sentenced on October 1, 2014, and is currently serving
a 120-month sentence for conspiracy to possess with intent to distribute
methamphetamine. 	See Docket No. 14 at p. 2, ¶ 4; Docket No. 14-1 at p. 2.
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Respondent projects Mr. Montoya’s release date to be October 31, 2022, via
good conduct time release. 	Docket No. 14 at p. 2, ¶ 4.
Mr. Montoya asserts he is entitled to a credit against his sentence right
now of an unspecified number days which he asserts he has earned pursuant
to the First Step Act (“FSA”), discussed in more detail below. 	Docket No. 1.
DISCUSSION
The First Step Act (“FSA”), Public Law No. 115-391, was enacted into law
on December 21, 2018. 	Mr. Montoya invokes the portion of the FSA dealing
with an inmate’s ability to earn credits allowing him to secure earlier release
from prison.
Congress directed the Bureau of Prisons (“BOP”) to develop a system to
assess each inmate’s risks and needs. 	18 U.S.C. § 3632(a). 	That risk and
needs assessment tool was required to be completed no later than July 19,
2019. 	Id. 	The BOP met this deadline by announcing the development of 	its
Prisoner Assessment Tool Targeting Estimated Risk and Needs (“PATTERN”)
tool on July 19, 2019. 	See Press Release 19-784, U.S. Dep’t of Justice,
Department of Justice Announces the Release of 3,100 Inmates Under the First
Step Act, Publishes Risk and Needs Assessment System available at
https://www.justice.gov/opa/pr/department-justice-announces-release-3100-
inmates-under-first-step-act-publishes-risk-and (last checked Nov. 30, 2021).
Congress then directed the BOP to apply this assessment (the PATTERN
tool) to determine each inmate’s needs for programming appropriate to him. 	18
U.S.C. § 3632(a)(3). 	This step was required to be completed 180 days after the
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creation of the PATTERN tool, or by January 15, 2020. 	The BOP met this
deadline by screening all inmates using the PATTERN tool as announced on
January 15, 2020. 	See Press Release 20-37, U.S. Dep’t of Justice, Department
of Justice Announces Enhancement to the Risk Assessment System and
Updates on First Step Act Implementation available at
https://www.justice.gov/opa/pr/department-justice-announces-
enhancements-risk-assessment-system-and-updates-first-step-act (last
checked Nov. 30, 2021).
Congress created in the FSA a system of “time credits” to encourage
inmates to participate in the particular programming needed by them as
indicated by their PATTERN assessment. 	18 U.S.C. § 3632(d). 	Under the FSA,
time credits may be earned by eligible prisoners who successfully complete the
right type of programming or productive activities. 	18 U.S.C. § 3632(d)(4)(A).
Time credits for the right kind of programming are awarded at the rate of “10
days of time credits for every 30 days of successful participation in evidence-
based recidivism reduction programming or productive activities.” 	18 U.S.C.
§ 3632(d)(4)(A)(i). 	Not all programs or activities an inmate participates in
qualify for these time credits. 	Id., and 18 U.S.C. § 3635(3), (5). 	Inmates may
not count time credits earned prior to the enactment of the FSA under these
provisions nor may they count programming completed before the
commencement of their sentences. 	18 U.S.C. § 3632(d)(4)(B).
The final deadline contained in the FSA directs the BOP to phase in the
entire program for all prisoners by January 15, 2022. 	18 U.S.C. § 3621(h)(2).
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During the final phase-in period, the BOP is to provide priority to inmates
based on the proximity of their release dates. 	18 U.S.C. § 3621(h)(3). 	Congress
specified that, during the phase-in period, the BOP “may begin to expand any
evidence-based recidivism reduction programs and productive activities that
exist at a prison as of” the date of enactment of the FSA. 	18 U.S.C.
§ 3621(h)(4).
Mr. Montoya claims he is entitled to an unspecified number of days of
programming credit under the FSA, to be applied to his release date
immediately. 	See Docket No. 1. 	Under the FSA, earned time credits are to be
granted based on the number of days of approved programming that the
inmate successfully completes using a 1:3 ratio (10 days of earned time credit
for every 30 days of successful completion of approved programming). 	18
U.S.C. § 3632(d)(4)(A)(i). 	Not all programs or activities an inmate participates
in qualify for these time credits. 	Id.; see also 18 U.S.C. § 3635(3), (5).
Mr. Montoya’s claim to receive credit immediately in the here and now for
whatever programming he has completed rests upon his reading of the FSA
under which the BOP is required to implement the FSA fully right now.
The government argues, to the contrary, that it need not fully implement
the FSA until January 15, 2022. 	See Docket No. 13 at pp. 18-19. 	Until that
date comes, the government argues, Mr. Montoya’s claim is not ripe. 	Id.
Because Mr. Montoya’s claim is unripe, the respondent asserts this court is
without subject matter jurisdiction to consider his petition. 	Id.
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Chief Judge Roberto A. Lange, in a thorough opinion on this very subject,
has ruled in favor of the government, siding with the majority of courts who
have addressed this issue. 	See Holt v. Warden, 4:20-cv-04064-RAL, 2021 WL
1925503 at **4-6 (D.S.D. May 13, 2021); Cornell v. Bennett, 4:21-cv-04056-
RAL, 2021 WL 3417898, at *1 (D.S.D. July 21, 2021). 	Two opinions contrary
to Judge Lange’s decision were issued in this district, relying on the minority
opinion of Goodman v. Ortiz, Civ. No. 20-7582 (RMB), 2020 WL 5015613
(D.N.J. Aug. 25, 2020). 	See Nelson v. Cox, 4:20-cv-04199-KES, Docket No. 39
(D.S.D. Nov. 24, 2021); O’Bryan v. Cox, 4:21-cv-04052-LLP, 2021 WL 3932275
(D.S.D. Sept. 1, 2021). 	The Eighth Circuit has now summarily affirmed Judge
Lange’s opinion. 	Cornell v. Bennett, 21-2731 (8th Cir. Nov. 29, 2021) (also
found at 4:21-cv-04056-RAL, Docket No. 29).
This court incorporates by reference herein the entirety of Chief Judge
Lange’s reasoning and authority. 	In short, only one court and two judges
within this district have ruled that the BOP is under an obligation to begin
crediting inmates with earned FSA time credits prior to January 15, 2022.
Holt, 2021 WL 1925503, at *5 (citing Goodman v. Ortiz, Civ. No. 20-7582
(RMB), 2020 WL 5015613 (D.N.J. Aug. 25, 2020). 	The majority of other courts
to address the issue have reached a contrary conclusion. 	Id. (citing decisions
from S.D.N.Y., N.D. Fla., C.D. Ill., E.D. Cal.).
Chief Judge Lange sided with the majority, noting that regarding
implementation of FSA earned credits prior to January 15, 2022, Congress
used the permissive word “may,” not the mandatory word “shall.” 	Id.
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Although the court noted that the BOP was evading the spirit of the FSA by not
engaging in any phasing-in prior to January 15, 2022, ultimately, Chief Judge
Lange concluded that Congress’ intent was clear: 	by using the word “may,” the
BOP was given discretion as to when earned FSA time credits would be credited
toward prisoners’ early release so long as they do so fully no later than January
15, 2022.
The court agrees with Chief Judge Lange’s analysis. 	As the BOP has
taken the position that it will not apply FSA credits until January 15, 2022,
Mr. Montoya’s claim prior to that date is not ripe. 	Or, another way of
characterizing his claim is that he lacks standing: 	he cannot show he has
sustained an injury. 	Id.
Federal courts are courts of limited jurisdiction—they may adjudicate
only those cases within their articulated jurisdiction under Article III of the
Constitution or a valid statute enacted pursuant to Article III. 	Marbury v.
Madison, 1 Cranch (5 U.S.) 137, 173-80 (1803). 	A motion to dismiss for lack of
subject matter jurisdiction pursuant to FED. R. CIV. P. 12(b)(1) challenges the
court=s authority and competence to hear the case pending before it. 	5B
Charles A. Wright & Arthur R. Miller, Fed. Practice & Procedure, ' 1350, at 64
(3d ed. 2004); Yankton Sioux Tribe v. U.S. Army Corps of Eng’rs, 194 F. Supp.
2d 977, 983 (D.S.D. 2002). 	A ‘[I]t is a cardinal rule upheld by countless federal
cases that [neither the court nor] the parties may not create or destroy
jurisdiction by agreement or by consent.’ @ 	5B Fed. Practice & Procedure,
' 1350, at 128. 	The issue of a federal court=s subject matter jurisdiction, or
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lack thereof, is central to the tenets of judicial federalism, the distribution of
judicial power between state and federal courts. 	Id. at 120-33. 	Unfortunately,
the court concludes it lacks subject matter jurisdiction over Mr. Montoya’s
claim.
CONCLUSION
Based on the foregoing facts, law and analysis, this magistrate judge
respectfully recommends granting respondent’s motion to dismiss [Docket No.
12] and dismissing Mr. Montoya’s petition without prejudice for lack of subject
matter jurisdiction. 	The court also recommends denying Mr. Montoya’s
emergency motion for release. 	Docket No. 16.
NOTICE TO PARTIES
The parties have fourteen (14) days after service of this report and
recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1),
unless an extension of time for good cause is obtained. 	Failure to file timely
objections will result in the waiver of the right to appeal questions of fact.
Objections must be timely and specific in order to require de novo review by the
district court. 	Thompson v. Nix, 897 F.2d 356 (8th Cir. 1990); Nash v. Black,
781 F.2d 665 (8th Cir. 1986).
DATED November 30, 2021.
BY THE COURT:
VERONICA L. DUFFY
United States Magistrate Judge
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