Cole v. Warden, S.C.P. Three Rivers

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
STUART CLAY COLE,
Petitioner,
VS.
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CIVIL ACTION NO. 2:25-CV-00071
WARDEN, S.C.P. THREE RIVERS,
Respondent.
ORDER ADOPTING MEMORANDUM AND RECOMMENDATION
Pending before the Court are Respondent’s Motion for Summary Judgment (D.E. 17)
and Petitioner’s Cross-Motion for Summary Judgment (D.E. 21). On January 21, 2026,
United States Magistrate Judge Jason B. Libby issued a Memorandum and Recommendation
(M&R, D.E. 22), recommending that Respondent’s motion (D.E. 17) be granted, Petitioner’s
motion (D.E. 21) be denied, and this case be dismissed. Petitioner timely filed his objections
(D.E. 25) on February 4, 2026, under the prison mailbox rule.
Petitioner’s argument in his habeas corpus action flows as follows:
1. The First Step Act of 2018 (FSA), 18 U.S.C. § 3632(d)(4), provides that
inmates may earn time credits (FTCs) toward early release by successfully
participating in Evidence–Based Recidivism Reduction (EBRR) Programs
or Productive Activities (PA) during the time they are in BOP custody.
2. The BOP is required to provide EBRRs and PAs throughout an inmate’s
BOP custody under 18 U.S.C. § 3621(h)(6).
3. The time spent in BOP custody is defined by 18 U.S.C. § 3585(a) as
including time spent in transit to BOP facilities.
4. The BOP—in contravention of § 3585(a)—improperly promulgated a rule,
28 C.F.R. § 523.41(c)(4)(iii), that treats inmates in transit, categorically, as
United States District Court
Southern District of Texas
ENTERED
February 25, 2026
Nathan Ochsner, Clerk
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not successfully participating in an EBRR program or PA (or as ineligible
to earn FTCs during that time). See, e.g., Sharma v. Peters, 756 F. Supp. 3d
1271, 1284 (M.D. Ala. 2024) (holding the BOP regulation unlawful and
citing cases).
5. Pursuant to the allegedly unlawful rule of § 523.41, Petitioner was deemed
ineligible and did not earn FTCs during 117 days he spent in transit between
BOP facilities.
6. Nevertheless, during that time, he claims that he successfully participated in
a PA by working as a unit orderly in a facility’s Psychology Department.
7. Therefore, he is entitled to FTCs for the time he worked in the Psychology
Department.
D.E. 20, 21, 25.
The M&R disagreed, concluding:
A. The requirement of providing EBRR or PA programming does not extend
to every single day of incarceration, citing White v. Warden of Federal
Correction Institution-Cumberland, No. 23-7116, 2026 WL 89397, at *1
(4th Cir. Jan. 13, 2026) (such a rule would defy common sense given that
the inmate must be able to participate to earn credits) (disagreeing with
Petitioner’s items 2 and 3);
B. There is no binding or persuasive precedent for treating the BOP regulation
as unlawful (disagreeing with Petitioner’s item 4), and citing Pierce v.
Lemaster, No. 24-7-DLB, 2024 WL 439447, at 2 (E.D. Ky. Jan. 27, 2024)
(holding the BOP exclusion of transit time as proper and citing cases);
C. There is insufficient evidence that Petitioner, in fact, worked while in transit
status, that the work was an approved PA, or that he requested credit for that
time sufficient to controvert Respondent’s evidence that there was no such
programming available or that there is no record that Petitioner successfully
participated in any such program (disagreeing with Petitioner’s item 6); and
D. Petitioner has received the maximum 365-day benefit toward early release
to supervised release and any additional days can be applied to eligibility for
prerelease custody, such as a residential reentry center or home confinement.
Because the earning and application of FSA time credits involve numerous
conditions both within and outside the inmate’s control, they do not
implicate a liberty interest. See 18 U.S.C. § 3624(g)(3); see also Vargas v.
Rivers, No. 24-10703, 2025 WL 1380067, at *1 (5th Cir. May 13, 2025).
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Petitioner’s first objection is that the Magistrate Judge failed to address the merits of
his case. D.E. 25, p. 1 (addressing Petitioner’s items 2-4 and M&R items A and B). In
particular, he complains that the M&R does not follow the reasoning in cases he previously
cited, but he does not cite those cases in his objections. An objection that merely seeks to
rehash previous arguments is improper. Edmond v. Collins, 8 F.3d 290, 293 n.7 (5th Cir. 1993)
(finding that right to de novo review is not invoked when a petitioner merely re-urges
arguments contained in the original petition).
Moreover, contrary to Petitioner’s argument, the M&R did not “go silent” on these
cases. Rather, the Magistrate Judge found them nonbinding, unpersuasive, and contrary to
other, more persuasive cases. The M&R did address the merits of Petitioner’s claims and the
objection is OVERRULED.
Second, Petitioner objects that the M&R ignores BOP Director Colette S. Peter’s
superseding directive of November 18, 2022,1 regarding the assessment of “programming
days.” D.E. 25, p. 2 (addressing Petitioner’s item 4 and M&R item B). Petitioner references
“Exhibit F D.E. 20 and 21.” The only document that appears there is incomplete, ending as
the directive begins to discuss the relevant terms for earning FTC credits. A review of that
entire directive does not change the relevant terms of 28 C.F.R. § 523.41, by which days in
transit are excluded from FTC earning status. The directive simply repeats or explains those
terms.2 Petitioner’s second objection is OVERRULED.
1 While the objections reference the date of November 18, 2024, the incomplete directive submitted as an exhibit to his
summary judgment response is dated November 18, 2022. D.E. 20-1, p. 12.
2 See https://www.bop.gov/policy/progstat/5410.01_cn2.pdf, page 15 (last visited February 23, 2026).
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Third, Petitioner objects that summary judgment was inappropriate because of the
disputes recited in his first two objections. D.E. 25, p. 2. For the same reasons set out above,
this argument has no merit. Moreover, the Court notes that Respondent’s motion should be
granted and Petitioner’s motion should be denied for the independent reason that Petitioner
has failed to object to the M&R’s conclusion that he has not proven that he participated in a
PA during his time in transit and that he has not set out a violation of any liberty interest.
Therefore, the Court OVERRULES Petitioner’s third objection.
Having reviewed the findings of fact, conclusions of law, and recommendations set
forth in the Magistrate Judge’s Memorandum and Recommendation, as well as Petitioner’s
objections, and all other relevant documents in the record, and having made a de novo
disposition of the portions of the Magistrate Judge’s Memorandum and Recommendation to
which objections were specifically directed, the Court OVERRULES Petitioner’s objections
and ADOPTS as its own the findings and conclusions of the Magistrate Judge. Accordingly,
Respondent’s motion for summary judgment (D.E. 17) is GRANTED, Petitioner’s cross-
motion for summary judgment (D.E. 21) is DENIED, and this petition for writ of habeas
corpus is DISMISSED.
ORDERED on February 24, 2026.
_______________________________
NELVA GONZALES RAMOS
UNITED STATES DISTRICT JUDGE
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