United States District Court, D. Minnesota
HOWARD O. KIEFFER, Petitioner,
WARDEN M. RIOS, Respondent.
O. Kieffer, pro se.
Tweeten, UNITED STATES ATTORNEY'S OFFICE, for respondent.
Patrick J. Schiltz United States District Judge
matter is before the Court on petitioner Howard O.
Kieffer's objection to Magistrate Judge Steven E.
Rau's Report and Recommendation ("R&R")
filed on June 25, 2019. Judge Rau recommends dismissal of
Kieffer's petition under 28 U.S.C. § 2241. The Court
has conducted a de novo review. See 28 U.S.C. §
636(b)(1); Fed.R.Civ.P. 72(b). Based on that review, the
Court overrules Kieffer's objection and adopts the
R&R. Only one issue merits comment:
9, 2018, Kieffer was sentenced to a 24-month term of
imprisonment for violating the terms of his supervised
release. ECF No. 8 at 9. Prior to the revocation of his
supervised release, Kieffer was sentenced to a 99-month term
of imprisonment, which he completed on December 30, 2016. ECF
No. 2 at 1-2. Kieffer claims that the Bureau of Prisons
("Bureau") miscalculated his good-conduct time
under 18 U.S.C. § 3624(b), as amended by the First Step
Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194, 5210
First Step Act alters the method of calculating good-conduct
time under 18 U.S.C. § 3624(b). Under the previous
method, a prisoner could earn up to 47 days of good-conduct
time for each year of imprisonment. See Barber v.
Thomas, 560 U.S. 474, 479 (2010). Under the 2018
amendment, a prisoner may now earn up to 54 days of
good-conduct time for each year of imprisonment. 132 Stat. at
5210. Pursuant to the First Step Act, the Bureau notified
Kieffer on June 24, 2019 that his projected release date had
been moved from December 15, 2019 to December 1, 2019. ECF
No. 14 at 2. Kieffer maintains, however, that he should also
be credited with the good-conduct time he would have received
on his original 99-month sentence if the First Step Act had
been enacted at the time he was serving that sentence.
assertion that the Bureau should have recalculated his
good-conduct time by aggregating his original 99-month
sentence and his present 24-month sentence fails as a matter
of law. As the District of New Jersey, the
Northern District of West Virginia, and the Western District
of Wisconsin have all squarely held in considering precisely
this question, a revocation sentence is separate and distinct
from the original underlying sentence for purposes of
calculating good-conduct time. See Racine v. Fed. Bureau
of Prisons, Civ. A. No. 07-1834 (JBS), 2007 WL 1585154,
at *5 (D.N.J. May 31, 2007) ("[T]his Court finds no
merit to Racine's contention that his sentence on
violating supervised release is a continuation of and part of
his original custodial term on his underlying drug
conviction. While supervised release is imposed as part of
the original sentence, any incarceration ensuing from the
revocation of supervised release is generally based on new
conduct, and 'is wholly derived from a different source,
and has different objectives altogether; it is therefore a
different beast.'" (quoting United States v.
McNeil, 415 F.3d 273, 277 (2d Cir. 2005))); Stelluto
v. Wendt, No. Civ. A. 105CV31, 2005 WL 3277661, at *3
(N.D. W.Va. Nov. 30, 2005) (declining to aggregate
petitioner's initial sentence and revocation sentence for
purposes of calculating good-conduct time); Schmitz v.
Scibana, No. 04-C-414-C, 2004 WL 1563302, at *1 (W.D.
Wis. July 9, 2004) ("[P]etitioner has already completed
the 60-month sentence and is now serving a new one. He points
to no authority that would allow this court to either treat
the two sentences as one or order the bureau to remedy a past
erroneous calculation by making up the difference on a new
sentence."). Accordingly, Kieffer is eligible to earn
additional good-conduct time under the First Step Act
only for the 24-month sentence he is currently
on all of the files, records, and proceedings herein, the
Court ADOPTS the R&R [ECF No. 13]. Accordingly, IT IS
HEREBY ORDERED THAT petitioner's 28 U.S.C. § 2241
petition for writ of habeas corpus [ECF No. 1] is DISMISSED
JUDGMENT BE ENTERED ACCORDINGLY.
As Judge Rau noted, Kieffer's
argument was premature at the time the R&R was issued on
June 25, as the relevant provision of the First Step Act was
not effective until July 19, 2019. See 132 Stat. at
5196, 5213. As the July 19 deadline has since ...