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.
MEMORANDUM AND RECOMMENDATION
Petitioner Stuart Cole filed this petition for writ of habeas corpus pursuant to 28
U.S.C. § 2241, alleging the Federal Bureau of Prisons (“BOP”) has miscalculated his
sentencing credit under the First Step Act of 2018 (“FSA”) by improperly disallowing 117
days1 while he was in transit between different BOP facilities. (D.E. 1; D.E. 13 and D.E.
15).2 On May 23, 2025, Respondent filed an Answer and Motion for Summary Judgment,
1BOP records indicate the total disallowed days total 115. (D.E. 16-1, Page 5). However, the
undersigned will refer to this period as 117 days as alleged by Petitioner.
2The FSA provides, among other things, for a system allowing eligible prisoners to earn sentence
time credits toward time in pre-release custody or supervised release for successfully completing
recidivism reduction programming or productive activities. 18 U.S.C. § 3632(d)(4)(A). An inmate
can earn 10 or 15 days off a sentence for every 30 days of participation in the program, depending
on recidivism risk. 18 U.S.C. § 3632(d)(4)(A)(i),(ii). The maximum credit time an inmate can
earn toward early transfer to supervised release is 365 days. 18 U.S.C. § 3624(g)(3). Any credit
beyond 365 days may be applied by the BOP to a prisoner’s eligibility date for pre-release custody,
such as a residential reentry center or home confinement. 18 U.S.C. § 3632(d)(4)(C); 18 U.S.C. §
3624(g)(2). The FSA does not permit the earning of sentence credits prior to its effective date of
December 21, 2018. 18 U.S.C. § 3632(d)(4)(B)(i).
United States District Court
Southern District of Texas
ENTERED
January 22, 2026
Nathan Ochsner, Clerk
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asserting Petitioner’s petition is without merit. (D.E. 16 and D.E. 17). On July 25, 2025,
Petitioner filed a “Response and Objection to Answer of Respondent” as well as an
“Objection to Respondent’s Motion for Summary Judgment and Cross-Motion for
Summary Judgment in Favor of Petitioner.” (D.E. 20 and D.E. 21).
After consideration, the undersigned RECOMMENDS Respondent’s Motion be
GRANTED (D.E. 17), Petitioner’s Motion be DENIED (D.E. 21) and this petition for writ
of habeas corpus be DISMISSED.
I. JURISDICTION
Section 2241 petitions must be filed in the district where the prisoner is incarcerated.
Pack v. Yusuff, 218 F.3d 448, 451 (5th Cir. 2000) (citations omitted). At the time of filing
and currently, Petitioner is incarcerated in Three Rivers, Texas and therefore, jurisdiction
is proper in this Court. 28 U.S.C. § 124(b)(6); see McClure v. Hopper, 577 F.2d. 938, 939-
40 (5th Cir. 1978) (explaining that jurisdiction attaches upon the initial filing for habeas
corpus relief, regardless of petitioner’s transfer or custodial change) (citations omitted).
This case has been referred to the undersigned pursuant to 28 U.S.C. § 636.
II. BACKGROUND
On June 28, 2012, Petitioner pleaded guilty in the United States District Court for
the Southern District of Texas to possession with intent to distribute approximately 40
kilograms of cocaine. (United States v. Cole, No. 7:12-cr-344-1 (S.D. Tex. Dec. 4, 2012)
(Judgment)). On December 4, 2012, he was sentenced to 188 months incarceration and
five years of supervised release. Id.; (D.E. 16-1, Page 10). On May 12, 2014, Petitioner
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pleaded guilty in the United States District Court for the Middle District of Georgia to
conspiracy to commit mail fraud and money laundering conspiracy. (United States v. Cole,
No. 7:13-cr-27-1 (M.D. Ga. May 12, 2014) (Judgment); (D.E. 16-1, Pages 10-11). He was
sentenced to a term of 188 months incarceration, later reduced to 128 months, and three
years of supervised release, to run consecutive to his earlier 188 months sentence in the
Southern District of Texas. Id.; United States v. Cole, No. 7:13-cr-27-1 (M.D. Ga. Oct. 11,
2024) (Order) (Noting the Court granted the Government’s Rule 35 Motion, reducing
Petitioner’s sentence to 128 months). His current projected release date to supervised
release is July 25, 2033, which includes the maximum allowed 365 days of FSA time
credits. Id.; D.E. 16, Page 13 and D.E. 16-1, Page 12).
III. SUMMARY JUDGMENT
In deciding a motion for summary judgment, the district court must determine there
is no genuine issue as to any material fact and the moving party is entitled to judgment as
a matter of law. Fed. R. Civ. P. 56. Generally, Rule 56 applies to federal habeas corpus
cases. Clark v. Johnson, 202 F.3d 760, 764-65 (5th Cir. 2000).
Once the movant presents a properly supported motion for summary judgment the
burden shifts to the non-movant to present significant evidence of the existence of a
genuine issue of material fact. Hamilton v. Segue Software, Inc., 232 F.3d 473, 477 (5th
Cir. 2000) (citation omitted). Where there are cross-motions for summary judgment, each
movant bears the burden of showing that no genuine issue of material fact exists and they
are entitled to judgment as a matter of law. Am. Int.’l Specialty Lines Ins. Co. v. Rentech
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Steel LLC, 620 F.3d 558, 662 (5th Cir. 2012). If there is no genuine issue of fact and one
party is entitled to prevail as a matter of law, the court may render summary judgment.
Shaw Constructors v. ICF Kaiser Eng'r, Inc., 395 F.3d 533, 539 (5th Cir. 2004).
IV. DISCUSSION
Petitioner asserts the BOP incorrectly determined he was ineligible to earn FSA time
credits for the 117 days he was “in hold-over status” and being transferred between
different federal facilities, specifically from March 11, 2020 to June 23, 20203 and from
November 22, 2023 to December 5, 2023. (D.E. 13, Page 2). He argues he is entitled to
FSA credits “while in transfer based on the FSA statutory framework during official
detention and in hold-over.” Id. Petitioner claims these 117 days must be reclassified from
“disallowed” to “accrued” as FSA program days. (D.E. 1, Pages 2 and 8; D.E. 13, Page 1;
D.E. 20 and D.E. 21).
Respondent asserts “[a]n inmate does not start earning FSA Time Credits until after
he arrives at his designated facility” and successfully participates in certain recidivism
reduction programming or productive activities. (D.E. 16, Pages 7-8); 28 C.F.R. §
523.42(a); 18 U.S.C. § 3621(h)(1)(A); 18 U.S.C. § 3632(d)(4)(A). The FSA provides the
Director of the BOP “shall provide all prisoners with the opportunity to actively participate
in [programming] or productive activities, according to their specific criminogenic needs,
throughout their entire term of incarceration.” 18 U.S.C. § 3621(h)(6). However, in 2022,
3As noted by Petitioner, the COVID pandemic increased the period he was in transit during this
time because the day after he was placed at the transfer facility, “a National Pandemic declaration
was made and a system wide BOP ‘Lock-Down” occurred.” (D.E. 20, Page 5).
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the BOP promulgated 28 C.F.R. § 523.41 which identifies criteria for determining whether
prisoners are “successfully participating” in programming and are, therefore, eligible to
earn credit. Relevant here is 28 C.F.R. § 523.41(c)(4) which outlines circumstances when
prisoners “will generally not be considered to be ‘successfully participating.’” As argued
by Respondent, inmates become temporarily ineligible to earn time credits under a variety
of circumstances, such as when they are placed in a special housing unit, transferred to the
custody for service of a state sentence, placed on a mental health hold, if they opt out of
the recommended programming or productive activities, or, relevantly, are placed on
designation status outside the institution, which includes for extended medical placement
in a hospital, escorted trip or furlough, etc. (D.E. 16, Pages 9-10 (citing 28 C.F.R. §
523.41(c)(4)). Respondent asserts “an inmate who is in transit to another facility is
considered to fall within the category of a designation status outside the institution.” (D.E.
16, Pages 9-10). Petitioner argues this violates the FSA because the FSA does not exempt
transfer periods and nothing about the circumstances of transfer from one BOP facility to
another should make it unworkable for inmates to continue participating in programming.
(D.E. 13; D.E. 20; and D.E. 21).
Upon review, as of May 4, 2025, Petitioner, based on 2,211 programming days, has
earned 1,065 credits of which 365 can be applied towards early release to supervised
release and the remaining 700 days can be applied to transfer to prerelease custody. (D.E.
16, Page 13 and D.E. 16-1, Page 5); 18 U.S.C. § 3624(g)(3) (The BOP “may transfer the
prisoner to being any such term of supervised release at an earlier date, not to exceed 12
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months, based on the application of time credits under 3632.”) If he continues to remain
eligible and to participate as required, Petitioner will earn another 15 credits for every 30
days he remains in custody and is eligible to apply those credits once he has earned credits
“in an amount that is equal to the remainder of [his] imposed term of imprisonment.” Id.
(citing 18 U.S.C. § 3624(g)(1)(A)).
As for the 117 days Petitioner was in transit, the FSA provides that prisoners
“shall…earn 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)
(emphasis added). Therefore, it is clear a prisoner earns FSA credits based on the days he
actively participates in eligible programs or activities. The BOP here has reasonably
interpreted § 3632, determining Petitioner was not “successfully participating” in
programming when he was in transit. 28 C.F.R. § 523.41(c)(4); Pierce v. Lemaster, No.
24-7-DLB, 2024 WL 439447, at 2 (E.D. Ky. Jan. 27, 2024) (“Courts have consistently
upheld the BOP’s decision to deny FSA credits to inmates who were unable to complete
the required [programs or training] because they were in transit during the pertinent
periods”) (citing, among other cases, Alvarez v. Cox, No. 2:23-cv-18, 2023 WL 9110918,
at *4 (S.D. Tex. Nov. 3, 2023), memorandum and recommendation adopted, 2024 WL
69079 (S.D. Tex. Jan. 5, 2025) (Alternatively finding petitioner, who was being transferred
between facilities for a total of 53 days, “was not eligible to receive time credits for those
days” because he was in transit pursuant to 28 C.F.R. § 523.41(c)(4)(iii)).
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As emphasized by Respondent, Petitioner has failed to show he successfully
participated in, or completed, programming while he was in transit at any facility or that
he requested it. While Petitioner briefly argues in one filing that during his first transit
period, he “DID PROGRAM with the facility Psychology Department [and] worked as a
Unit Orderly,” Petitioner presents no evidence in support of this assertion, nor does he
provide any evidence that these activities were his approved FSA programming or
activities. (D.E. 20, Page 5). Further, Petitioner’s case manager, George Hernandez,
averred “there is no record of [Petitioner] participating in any [FSA] programs…when he
was in-transit from March 11, 2020—June 22, 2020, and November 22, 2023—December
4, 2023. [Petitioner] hasn’t provided me with any certificates or made any reference to
participating in any programming during the time he was in-transit.” (D.E. 16-1, Pages 2-
3). Additionally, while it is not clear whether the BOP offered Petitioner any FSA
programming during his time in transit, Petitioner has not provided the Court with any
binding or persuasive authorities that the BOP must always provide inmates with the
opportunity to earn FSA credits during short, transitory periods. White v. Warden of Fed.
Corr. Institution-Cumberland, No. 23-7116, 2026 WL 89397, at *1 (4th Cir. Jan. 13, 2026)
(“Because [Petitioner] does not claim that he participated in such programming or activities
during the three days he was in transit, he cannot claim that he ‘earned’ FSA time
credits…[and Petitioner’s] argument that the BOP should have offered him such
programming during his transfer so that he could have earned the FSA time credits cannot,
even if successful, lead to a ruling awarding him such credits because he still would not
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have shown that he had earned them by actually participating in the programming, as
required by the FSA.”) The FSA “is plain; it requires participation for credits.” Id. at *4.
(Rejecting petitioner’s argument “the BOP wrongfully failed to provide him with
programming [“throughout [his] entire term of incarceration,”] as required by the FSA”
while in transit as “[i]t would defy common sense and be inconsistent with the FSA to
conclude that under such a scheme, a prisoner must be provided programming every single
day,” noting 28 C.F.R. § 523.41(c)(4))
Accordingly, the undersigned recommends the BOP acted properly and in full
conformity with § 3632(d)(4) when excluding the 117 days Petitioner spent in transit when
calculating Petitioner’s total FSA credits. “The law remains clear that a prisoner’s statutory
right to FSA time credits is tied to his actual participation in qualified programming.” Id.
at *5. There is no such evidence here and therefore, “the BOP did not have a statutory
obligation to award him FSA time credits for those days.” Id. *5-6 (“Because the earning
and application of FSA time credits are contingent upon numerous conditions both within
and outside of a prisoner’s control, the FSA does not create a statutory entitlement to those
credits.”) (citing Vargas v. Rivers, No. 24-10703, 2025 WL 1380067, at *1 (5th Cir. May
13, 2025) (“Concluding inmates have ‘no fundamental liberty interest in either
participation in [qualifying programming] or the incentives associated with that voluntary
participation, including the ability to earn FSA time credits.’”)
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V. RECOMMENDATION
For the reasons stated above, the undersigned RECOMMENDS Respondent’s
Motion be GRANTED (D.E. 17), Petitioner’s Motion be DENIED (D.E. 21) and this
petition for writ of habeas corpus be DISMISSED.
Respectfully submitted on January 21, 2026.
_______________________________
Jason B. Libby
United States Magistrate Judge
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NOTICE TO PARTIES
The Clerk will file this Memorandum and Recommendation and transmit a copy to
each party or counsel. Within FOURTEEN (14) DAYS after being served with a copy of
the Memorandum and Recommendation, a party may file with the Clerk and serve on the
United States Magistrate Judge and all parties, written objections, pursuant to Fed. R. Civ.
P. 72(b), 28 U.S.C. § 636(b)(1), General Order No. 2002-13, United States District Court
for the Southern District of Texas.
A party’s failure to file written objections to the proposed findings, conclusions, and
recommendation in a magistrate judge’s report and recommendation within FOURTEEN
(14) DAYS after being served with a copy shall bar that party, except upon grounds of
plain error, from attacking on appeal the unobjected-to proposed factual findings and legal
conclusions accepted by the District Court. Douglass v. United Servs. Auto Ass’n, 79 F.3d
1415 (5th Cir. 1996) (en banc).
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