DE LOS SANTOS

v.

WARDEN, FCC COLEMAN-LOW

Case No: 5:24-cv-148-JSS-PRL

Petitioner seeks a writ of habeas corpus under 28 U.S.C. § 2241. (Dkt. 1.) He claims that he is entitled to immediate release under the First Step Act (FSA). (Id. at 7.) Respondent contends that Petitioner is ineligible to apply his FSA credits because he is subject to a final order of removal. (Dkt. 5 at 2.) An evidentiary hearing is unnecessary because Petitioner's claim requires no further factual development. See Turner v. Crosby, 339 F. 3d 1247, 1275 (11th Cir. 2003). For the reasons outlined below, the petition for writ of habeas corpus (Dkt. 1) is dismissed.

Petitioner is serving a 36-month sentence at Coleman Federal Correctional Complex for possessing with intent to distribute cocaine on board a vessel, in violation of 46 U.S.C. § 70503. (See Case No. 4:21cr76-EWH-RJK-2 (E.D. Va.) (Criminal Case), Dkt. 64 at 2.) Petitioner moved to modify his term of imprisonment under 18 U.S.C. § 3582(c)(2). (Criminal Case, Dkt. 69.) The Eastern District of Virginia denied the motion. (Criminal Case, Dkt. 72.) Petitioner then filed his petition for writ of habeas corpus with this court. (See Dkt. 1 at 8.) He asserts one ground for relief: that the Bureau of Prisons wrongfully revoked his FSA credits because he is subject to a final order of removal. (Id. at 6.) He claims that he is not subject to a final order of removal, and he requests an order instructing the Bureau of Prisons to reinstate his FSA credits. (Id. at 6–7.)

Habeas corpus is the “exclusive remedy” for prisoners seeking “immediate or speedier release' from confinement.” Skinner v. Switzer, 562 U.S. 521, 525 (2011) (quoting Wilkinson v. Dotson, 544 U.S. 74, 82 (2005)). A section 2241 petition furnishes a basis to challenge the execution, rather than the validity, of the sentence. See McCarthan v. Dir. of Goodwill Indus.-Suncoast, Inc., 851 F. 3d 1076, 1129 (11th Cir. 2017) (en banc). Petitioner claims entitlement to FSA credits that would result in a shortened sentence and his immediate release. (See Dkt. 1.) Therefore, his claim is properly brought under section 2241.

Under the FSA, federal prisoners may earn and apply time credits to any remaining custody or supervised release. 18 U.S.C. § 3632(d)(4)(A), (C). However, a prisoner who is "the subject of a final order of removal under any provision of the immigration laws" is ineligible to apply time credits. 18 U.S.C. § 3632(d)(4)(E)(i). In addition, Bureau of Prisons regulations provide that “any inmate eligible to earn FSA [t]ime [c]redits" who is "[s]ubject to a final order of removal under immigration laws" of the United States “may not apply FSA [t]ime [c]redits toward prerelease custody or early transfer to supervised release." 28 C.F.R. § 523.44(a)(2).

Petitioner is subject to a final order of removal under 8 U.S.C.

§§ 1182(a)(7)(A)(i)(I) and 1225(b)(1). (Dkt. 5-1 at 2.) The final order of removal renders Petitioner ineligible to apply FSA credits to his sentence. Although Petitioner states that to his knowledge, “he has never had a [f]inal [o]rder of [d]eportation entered against him," (Dkt. 1-1 at 1), the court credits the order of removal filed by Respondent, (Dkt. 5-1 at 2).

Accordingly:

1. The petition for writ of habeas corpus (Dkt. 1) is DISMISSED. 2. The Clerk is DIRECTED to terminate any pending motions and deadlines and to close this case.

ORDERED in Orlando, Florida, on October 17, 2024.

JULIE S. SNEED

UNITED STATES DISTRICT JUDGE

Copies furnished to: Unrepresented Parties Counsel of Record