Terrell v. True ( 2023 )

Appellate Case: 22-1137 Document: 010110832938 Date Filed: 03/27/2023 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT March 27, 2023
_________________________________
Christopher M. Wolpert
Clerk of Court
BROOKS TERRELL,
Petitioner - Appellant,
No. 22-1137
v. (D.C. No. 1:21-CV-02935-WJM)
(D. Colo.)
TRUE, Warden,
Respondent - Appellee.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before TYMKOVICH, KELLY, and ROSSMAN, Circuit Judges.
_________________________________
Brooks Terrell, an inmate at the United States Penitentiary, Administrative
Maximum, appeals the lower court’s order denying his pro se application for a writ of
habeas corpus under § 2241 and dismissing his case with prejudice.1 Mr. Terrell
challenges the calculation of his federal sentence, arguing he is entitled to additional
good conduct time credits under the First Step Act. Pub. L. 115–391, 132 Stat. 5194.
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
1
There is also a pending motion for leave to proceed on appeal without prepayment
of costs or fees filed by Mr. Terrell. That motion is granted.
Appellate Case: 22-1137 Document: 010110832938 Date Filed: 03/27/2023 Page: 2
Because the Bureau of Prisons correctly calculated Mr. Terrell’s good time credits,
we affirm the district court.
I. Background
After Mr. Terrell was convicted of several federal felonies, a judge sentenced
him to 382 months in prison. The passage of the First Step Act, which provided
eligible inmates the opportunity to earn time credits for participation in certain
programs, prompted the Bureau to recalculate the amount of time for which Mr.
Terrell was potentially eligible. Under the Bureau’s policy, inmates who are not
making progress toward their GED are only eligible for 42 days of good time credit,
instead of 54 days, in those years of incarceration where an inmate has not earned, or
is not making progress toward earning, a GED. For nine years, Mr. Terrell did not
make the required progress towards a GED, resulting in the loss of 108 days of good
time credits. He has also been convicted of numerous disciplinary infractions,
resulting in the loss of 674 days of good time credits.
Under the First Step Act, the Bureau calculated that Mr. Terrell was eligible
for 1,718 days of good time credit at the outset of his sentence (54 days per year with
the final year prorated). That number, however, was reduced to 936 days because
Mr. Terrell did not make satisfactory progress towards earning a GED and was
convicted of prison disciplinary infractions. Mr. Terrell now claims he is eligible for
2,625 days of good time credit. In his supplemental briefing,2 he alternatively asserts
2
The court appointed counsel and requested supplemental briefing on Mr. Terrell’s
arguments.
2
Appellate Case: 22-1137 Document: 010110832938 Date Filed: 03/27/2023 Page: 3
that the congressional intent behind the First Step Act is to provide inmates with
seven additional days of good time credit per year.
II. Discussion
We have jurisdiction over this appeal pursuant to 28 U.S.C. §§ 1291 and 2253.
In reviewing a district court’s denial of a § 2241 application, we “review the district
court’s legal conclusions de novo and accept its factual findings unless clearly
erroneous.” Al-Marri v. Davis, 714 F.3d 1183, 1186 (10th Cir. 2013).
We find no error in the district court’s denial of Mr. Terrell’s habeas petition.
Mr. Terrell advances three arguments: (1) the First Step Act requires the Bureau to
reinstate all good time credit he would have initially been eligible for, regardless of
his disciplinary history; (2) the Bureau’s method of prorating eligible good time
credit conflicts with the language of the First Step Act; and (3) the congressional
intent behind the First Step Act is to provide inmates with a potential seven
additional days of good time credit. We are unpersuaded.
The First Step Act made significant changes to the calculation of good time
credit, but it does not explicitly require restoration of good time credit properly
revoked for disciplinary convictions. Mr. Terrell does not supply any authority to
suggest otherwise. Indeed, he acknowledges as much in his supplemental briefing.
While the Tenth Circuit has not addressed this particular question, the Third Circuit
rejected the same argument in Powers v. Warden Allenwood USP, 824 F. App’x 95(3d Cir. 2020). We agree with the Third Circuit.
3
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In Powers, the Third Circuit explained that the First Step Act amended the
previous statute to modify the process for calculating good time credit. Id. at 96. The
First Step Act kept the same language allowing the Bureau to determine whether an
inmate “displayed exemplary compliance with institutional disciplinary regulations.”
Compare § 3624(b)(1) (effective December 21, 2018 to July 18, 2019), with
§ 3624(b)(1) (effective July 19, 2019). The plain language of the statute
demonstrates that Congress meant to continue allocating the Bureau the authority to
revoke good time credit for disciplinary infractions. And there is no language in the
statute suggesting that the Bureau must restore good time credit already revoked for
disciplinary issues.3
Mr. Terrell’s challenge to the validity of the Bureau’s policy of prorating
eligible good time credit where an inmate’s remaining sentence is less than a year
likewise fails. The First Step Act is silent as to how to calculate good time credit for
a partial year of imprisonment, and agencies like the Bureau have leeway in
interpreting and implementing arguably ambiguous statutory provisions. Pub. L.
115–391, 132 Stat. 5194.4 Because the Bureau’s interpretation of the First Step Act’s
good time credit requirements is “based on a permissible construction of the statute,”
3
Mr. Terrell asserts that the good time credits are “vested” in him. But this is
contrary to the plain language of the statute: “credit awarded . . . shall vest on the
date the prisoner is released from custody.” 18 U.S.C. § 3624(b)(2).
4
Mr. Terrell also argues that 28 C.F.R. § 523.20 is the Bureau’s attempt to “re-
litigate” the belief that the First Step Act is ambiguous. He, however, does not
provide any examples where the regulations and the First Step Act conflict.
4
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we affirm the district court. Garcia-Mendoza v. Holder, 753 F.3d 1165, 1168 (10th
Cir. 2014) (internal quotation marks omitted).
Finally, Mr. Terrell’s seven-day argument fails, too. For the first time on
appeal, Mr. Terrell contends that Congress intended the Bureau of Prisons to dock
fewer good time credits from inmates not making satisfactory educational
advancement. But even liberally construing Mr. Terrell’s filings below5 does not
permit us to recognize such an argument as properly preserved. See Singleton v.
Wulff, 428 U.S. 106, 120 (1976) (explaining that generally a court of appeals will not
consider an issue raised for the first time on appeal). Regardless, we reject this
argument because it is not rooted in the text of the First Step Act and lacks support in
the record or congressional documents.
III. Conclusion
The district court’s order is AFFIRMED.
Entered for the Court
Timothy M. Tymkovich
Circuit Judge
5
Mr. Terrell proceeded pro se before the district court and for a portion of this
appeal, requiring the court to liberally construe those pleadings that were filed
without representation. See United States v. Pinson, 584 F.3d 972, 975 (10th Cir.
2009).
5