Buskey v. Hampshire House, Director et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Daniel Buskey
v. 	Case No. 19-cv-366-PB
Walter Davies, Director, Hampshire
House; and J. Ray Ormond, Regional
Director, Bureau of Prisons,
Northeast Regional Office
REPORT AND RECOMMENDATION
Before the court is petitioner Daniel Buskey’s filing,
entitled “Motion for Good Time Credits (Pursuant to the First
Step Act)” (Doc. No. 1), which this court has construed as a
petition for a writ of habeas corpus filed pursuant to 28 U.S.C.
§ 2241, challenging the calculation of his federal prison
sentence by the Federal Bureau of Prisons (“BOP”). 	The matter
is before the undersigned magistrate judge for preliminary
review to determine whether the petition is facially valid and
may proceed. 	See Rule 4 of the Rules Governing Section 2254
Cases (“§ 2254 Rules”); § 2254 Rule 1(b) (allowing application
of the § 2254 Rules to any habeas petition).
Background
On February 22, 2013, Buskey plead guilty in this court to
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one count of conspiracy to manufacture methamphetamine, and was
sentenced to a seventy-eight month prison term. 	See United
States v. Buskey, No. 12-cr-49-01-PB (D.N.H.), ECF No. 27.
Buskey asserts here that the BOP has recently transferred him to
the Hampshire House halfway house, and that he is scheduled to
be released from incarceration on May 17, 2019.
In his petition, Buskey invokes Section 102(b) of the
recently-enacted First Step Act of 2018, which, inter alia,
amends 18 U.S.C. § 3624(b)(1), the statute which authorizes and
governs the BOP’s calculation of federal sentences imposed by
the federal courts. 	Section 102(b)(1) amends § 3624(b)(1) by
raising the amount of good-time credit federal prisoners may
receive, for each year of their sentence, from forty-seven days
to fifty-four days.
Buskey now challenges the BOP’s calculation of his sentence
and release date, and asks the court to direct the BOP to grant
him additional good-time credit. 	Buskey contends that under §
102(b)(1), he is entitled to an additional seven days of good-
time credit for each full year of his six-and-a-half-year
sentence, and four days of prorated good time credit for the
remaining six months of his sentence, amounting to a total of
forty-six additional days of good-time credit. 	Applying that
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figure to his presently calculated May 17, 2019 release date,
Buskey claims he should have been released on April 2, 2019.
Buskey states that the BOP has declined to recalculate his
sentence based on the First Step Act, and further that the BOP
does not intend to make any good-time credit calculation changes
until July 2019 which, Buskey alleges, will deprive him of good
time credit to which he is entitled under § 102(b). 	Buskey
further alleges, without specificity, that some federal
prisoners with release dates in June, July, and August 2019,
have already had their good-time credit recalculated and
adjusted under the First Step Act, while Buskey’s May 2019
release date has not been so adjusted.
Discussion
I. 	Nature of Action
It appears Buskey intended to file his instant request for
a court order, directing the BOP to recalculate his good-time
credit, as a motion in his closed criminal case. 	However, “a
post-conviction motion attacking either the execution of a
sentence or confinement that is not the result of a trial
court’s judgment must be brought in a petition pursuant to 28
U.S.C. § 2241 in the district where the defendant is
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incarcerated or in a regional BOP office.” 	United States v.
Powell, No. 5:11-cr-75-JMH-1, 2019 U.S. Dist. LEXIS 60012, at
*3, 2019 WL 1521972, at *1 (E.D. Ky. Apr. 8, 2019); see also
Fusco v. Grondolsky, No. 17-cv-10771-DHH, 2018 U.S. Dist. LEXIS
145891, at *8-*9, 2018 WL 4100039, at *3 (D. Mass. Aug. 27,
2018). 	As stated above, after a sentence has been imposed by
the court, discretion for the calculation of the sentence rests
entirely with the BOP. 	See 18 U.S.C. §§ 3624(a)-(b).
Accordingly, Buskey’s challenge to the BOP’s calculation of his
good time credit must be raised in a § 2241 petition, and the
court has so construed his motion.1
II. 	Standard
In undertaking § 2254 Rule 4 preliminary review, this court
decides whether the petition contains sufficient factual matter,
accepted as true, to state a claim to relief that is plausible
on its face and cognizable in a federal habeas action. 	See
McFarland v. Scott, 512 U.S. 849, 856 (1994) (“Federal courts
1Because Buskey's filing is construed as a § 2241 petition,
rather than a § 2254 petition, the notice required by Castro v.
United States, 540 U.S. 375 (2003), is not applicable. 	See
Downie v. Maine, No. 2:18-cv-187-DBH, 2018 WL 2197956, at *1 n.2
(D. Me. May 14, 2018), R&R adopted, 2018 WL 3117226, at *1 (D.
Me. June 25, 2018).
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are authorized to dismiss summarily any habeas petition that
appears legally insufficient on its face.”). 	When a habeas
petitioner is proceeding pro se, the assertions contained in the
petition are construed liberally. 	See Erickson v. Pardus, 551
U.S. 89, 94 (2007) (per curiam).
III. Good Time Credit Under the First Step Act
In his petition, Buskey seeks an order giving him the extra
good-time credits he asserts he is due under section 102(b)(1).
Courts that have issued rulings on similar claims have generally
concluded that section 102(b)(1)’s effective date hinges on an
event that has not yet occurred, namely, the Attorney General’s
completion of a prisoner “risk and needs assessment system,”
which Congress has required the Attorney General to complete by
a date in July 2019. 	See, e.g., Johnson v. Bureau of Prisons,
No. 4:19-cv-224-O, 2019 U.S. Dist. LEXIS 62448, at *4, 2019 WL
1569360, at *1 (N.D. Tex. Apr. 11, 2019); Powell, 2019 U.S.
Dist. LEXIS 60012, at *6, 2019 WL 1521972, at *1; United States
v. Bellah, No. 2:12-CR-20016-001, 2019 U.S. Dist. LEXIS 56076,
at *1 (W.D. Ark. Apr. 2, 2019); Roy v. U.S. Bureau of Prisons,
No. 2:19-CV-59-RMP, 2019 U.S. Dist. LEXIS 56064, at *4, 2019 WL
1441622, at *2 (E.D. Wash. Apr. 1, 2019); Nichols v. Burch, No.
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CV 19-00076-TUC-RM (BGM), 2019 U.S. Dist. LEXIS 41595, at *4 (D.
Ariz. Mar. 12, 2019).
“Because the BOP has no authority to recalculate
[petitioner]’s good-time credit according to the First Step Act
until the relevant provisions take effect in approximately July
2019, the question of whether the BOP erred in administering
[petitioner]’s sentence on that basis is premature.” 	Roy, 2019
U.S. Dist. LEXIS 56064, at *3, 2019 WL 1441622, at *2.
Accordingly, the district judge should dismiss, as premature,
Buskey’s claims asserting that he is entitled to an immediate
recalculation of his good time credits under § 102(b).
IV. 	Equal Protection Claim
The court construes Buskey’s allegation that other inmates
have had their sentences recalculated under section 102(b)(1),
while the BOP has not so recalculated his sentence, as an
attempt to assert a claim alleging that the failure of the BOP
to recalculate his sentence violates his rights under the Equal
Protection Clause of the Fifth Amendment. 	The “Equal Protection
Clause contemplates that similarly situated persons are to
receive substantially similar treatment from their government.”
Davis v. Coakley, 802 F.3d 128, 132 (1st Cir. 2015) (citation
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omitted). 	To establish an equal protection claim, a petitioner
generally needs to allege facts showing that “‘(1) . . .
compared with others similarly situated, [the petitioner] was
selectively treated; and (2) that such selective treatment was
based on impermissible considerations such as race, religion,
intent to inhibit or punish the exercise of constitutional
rights, or malicious or bad faith intent to injure [the
plaintiff].’” 	Id. at 132-33 (citations omitted). 	Proof of
discriminatory intent or purpose is required to show a violation
of the Equal Protection Clause. 	Vill. of Arlington Heights v.
Metro. Hous. Dev. Corp., 429 U.S. 252, 265 (1977).
An equal protection claim may also be based on a “class of
one.” 	Donovan v. City of Haverhill, 311 F.3d 74, 77 (1st Cir.
2002). 	When pleading a “class of one” equal protection claim, a
petitioner must allege that he or she has “‘been intentionally
treated differently from others similarly situated and that
there is no rational basis for the difference in treatment.’”
See id. (citation omitted). 	A “class of one” equal protection
claim requires proof of “‘an extremely high degree of similarity
between [plaintiffs] and the persons to whom they compare
themselves.’” 	Snyder v. Gaudet, 756 F.3d 30, 34 (1st Cir. 2014)
(citations omitted). 	In addition, a “class of one” plaintiff
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must generally plead facts to “show that the defendant’s
differential treatment of the plaintiff was motivated by ‘bad
faith or malicious intent to injure.’” 	Id. (citation omitted).
Buskey does not assert any facts indicating that he was
treated differently than other inmates on the basis of his
affiliation with any protected class. 	Rather, he attempts to
assert a “class of one” equal protection claim, alleging only
that other inmates’ good-time credits have been recalculated
under the First Step Act, and that his were not. 	Buskey has not
alleged sufficient facts to show that any other inmate, whose
sentence he alleges has been recalculated, was similarly
situated to Buskey in all relevant respects. 	The court,
however, cannot rule out the possibility that Buskey may be able
to assert such facts. 	Accordingly, in an Order issued
simultaneously with this Report and Recommendation, the court
grants Buskey leave to amend his petition to state facts
sufficient to state an equal protection claim upon which relief
might be granted.
Conclusion
For the foregoing reasons, the district judge should
dismiss, as premature, the claims in Buskey’s petition (Doc. No.
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1) alleging that the BOP’s failure to recalculate his sentence
to date constitutes a violation of section 102(b) of the First
Step Act entitling him to relief. 	Any objections to this Report
and Recommendation must be filed within fourteen days of receipt
of this notice. 	See Fed. R. Civ. P. 72(b)(2). 	The fourteen day
period may be extended upon motion. 	Failure to file objections
within the specified time waives the right to appeal the
district court’s order. 	See Santos-Santos v. Torres-Centeno,
842 F.3d 163, 168 (1st Cir. 2016).
_______________________________
Andrea K. Johnstone
United States Magistrate Judge
April 16, 2019
cc: 	Daniel Buskey, pro se
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