United States District Court, D. Minnesota
KENNETH D. BOWDEN, Petitioner,
R. MARQUES, Respondent.
REPORT AND RECOMMENDATION
N. Leung, United States Magistrate Judge.
matter comes before the Court on Petitioner Kenneth D.
Bowden's Petition for a Writ of Habeas Corpus Under 28
U.S.C. § 2241, ECF No. 1 (Petition). See also
Mem. of Law in Supp. of Pet. for Writ of Habeas Corpus
Pursuant to 28 U.S.C. § 2241, ECF No. 3 (Memorandum).
This action has been referred to the undersigned magistrate
judge for a Report and Recommendation to the Honorable
Wilhelmina W. Wright, United States District Judge for the
District of Minnesota, under 28 U.S.C. § 636 and Local
Rule 72.1. For the reasons discussed below, the Court
recommends dismissing the Petition without prejudice.
is incarcerated at the Federal Correctional Institution in
Sandstone, Minnesota, where he is serving a 97-month prison
term following his conviction of possessing (with intent to
distribute) 100 grams or more of heroin. See J. in a
Criminal Case 1-2, United States v. Bowden, No.
14-CR-0134 (S.D. W.Va. May 13, 2015). See, e.g.,
Pet. 2. Online records from the Bureau of Prisons (BOP)
suggest that Bowden's present expected release date is
October 6, 2020. See Bureau of Prisons, Inmate
Locator-Kenneth D. Bowden, available at
https://www.bop.gov/inmateloc (last accessed July 3, 2019).
Bowden asserts that he is entitled to an earlier release date
because of recent statutory amendments contained in the First
Step Act of 2018 (FSA)-specifically, amendments to 18 U.S.C.
§ 3624(b)(1). See Pet. 8-9; Mem. 7-14. These
amendments alter the method of calculating so-called
good-time credit. See First Step Act of 2018, sec.
102(b)(1)(A), § 3624(b)(1), Pub. L. No. 115-391, 132
Stat. 5194, 5210 (codified at 18 U.S.C. § 3624(b)(1)).
the previous version of § 3624(b)(1), see,
e.g., 18 U.S.C. § 3624(b)(1) (2012), the BOP
calculated good-time credit at the rate of 54 days for each
year of imprisonment served, rather than 54 days for
each year of imprisonment imposed. See Barber v.
Thomas, 560 U.S. 474, 477-79 (2010) (discussing
calculation method). Under this time-served method, the
effective rate of good-time-credit accumulation (for a
prisoner who earned all possible good-time credit) was 47
days per year. Cf. Id. at 493 (establishing
mathematical basis for calculation). Under the new version of
§ 3624(b)(1), the BOP is to calculate good-time credit
at the rate of 54 days for each year of punishment imposed.
See 18 U.S.C. § 3624(b)(1). Using this method,
the effective rate of good-time-credit accumulation (again,
for a prisoner who earns all possible good-time credit) is no
longer 47 days a year, but a full 54 days per year.
amendments to § 3624(b)(1) do not take effect until the
Attorney General releases its “risk and needs
assessment system, ” which must be done no later than
210 days after enactment of the First Step Act. First Step
Act of 2018, PL 115-391, 132 Stat 5196, 5123. Because the
relevant subchapter of the FSA was enacted into law on
December 21, 2018, the Attorney General must complete the
risk and needs assessment on or before July 19, 2019. Based
on the record before the Court, the Attorney General has not
yet released the new assessment.
asserts that the new version of § 3624(b)(1) should have
gone into effect immediately upon the FSA's enactment and
that his good-time credit should be recalculated immediately.
See Mem. 1, 7-14. He contends that with the
recalculation, he is entitled 58 additional days of good-time
credit. See Id. at 14. Bowden's argument is without
a statute takes effect the day it is enacted. Johnson v.
United States, 529 U.S. 694, 702 (2000). A statute may
take place on a date other than the date of its enactment
only if there is an “explicit provision to the
contrary.” United States v. York, 830 F.2d
885, 892 (8th Cir. 1987). In this case, the First Step Act
contains an explicit provision to the contrary. The FSA
states unambiguously that good time credits can be
recalculated only after the Attorney General releases its
risk and needs assessment system. First Step Act of 2018, PL
115-391, December 21, 2018, 132 Stat 5196, 5213. It also
states unambiguously that the Attorney General has 210 days
from the date of the FSA's enactment to release the new
system. Therefore, the Court must conclude the effective date
for the amendments to § 3624(b)(1) has not yet occurred.
This conclusion is consistent with other decisions both in
this district and nationwide. See, e.g., Report and
Recommendation (ECF No. 8) and Order (ECF No. 9), Brown
v. United States, No. 19-CV-1229 (JNE/ECW) (D. Minn.
June 3, 2019 and June 28, 2019); Robertson v.
Marques, No. 19-CV-1009 (WMW/SER), 2019 WL 2476616, at
*2 (D. Minn. May 8, 2019), report and recommendation
adopted, 2019 WL 2464805 (D. Minn. June 13,
this Court must typically “enforce plain and
unambiguous statutory language according to its terms,
” it may depart from the plain language of a statute
when strict adherence to the text itself would result in
outcome at “odds with the intentions of its
drafters” or in an absurd result. Owner-Operator
Indep. Drivers Ass'n, v. United Van Lines, LLC, 556
F.3d 690, 694 (8th Cir. 2009) (citations omitted). But
Petitioner is unable to show that adherence to the
unambiguous language in the statute would lead to absurd
results. In fact, it is quite rational for Congress to delay
the effective date of the amendments to § 3624(b)(1) so
that the BOP has time to prepare and implement a new system
for calculating good time. See United States v.
Daniels, No. 11-cr-1 (JBA), 2019 WL 2354388, at *4 (D.
Conn. June 4, 2019) (reaching same conclusion). Though this
interpretation might be a harsh result for those inmates who
would eligible for immediate release if their good time
credits were recalculated, it is not an absurd one, given the
reasonable need for the BOP to determine what inmates the
First Step Act will impact and to make plans for those
inmates' release. Once the new risk and needs assessment
system is released, Petitioner will be eligible for
recalculation of his good time credit. But under current law,
the Court is without authority to order recalculation at this
time. The Court thus recommends that the Petition be denied
and that this action be dismissed without prejudice.
on the foregoing, and all the files, records, and proceedings
herein, IT IS RECOMMENDED THAT Petitioner
Kenneth D. Bowden's Petition for a Writ of Habeas Corpus
Under 28 U.S.C. § 2241 (ECF No. 1) be DISMISSED
Objections: This Report and Recommendation is not an
order or judgment of the District Court and is therefore not
appealable directly to the Eighth Circuit Court of Appeals.
Local Rule 72.2(b)(1), “a party may file and serve
specific written objections to a magistrate judge's
proposed finding and recommendations within 14 days after
being served a copy” of the Report and Recommendation.
A party may respond to those objections within 14 days after
being served a copy of the objections. See Local