Unreported / Non-Citable
Background
Dustin Harton Chase, a federal prisoner, petitioned under 28 U.S.C. § 2241 alleging the Bureau of Prisons unlawfully failed to apply First Step Act earned time credits. A magistrate judge recommended granting the petition and directing the BOP to recalculate his credits. Warden B. Birkholz objected, arguing that the petition raised only a 123-day period (October 27, 2024 to February 27, 2025), that the futility finding conflicted with the merits holding, that the Approved Program Guide foreclosed credit for his programming, that the report improperly invalidated 28 C.F.R. § 523.42(a), and that the recommended relief exceeded the claim, record and statute.
Chase was sentenced on July 18, 2023 and arrived at FCI Lompoc I on February 28, 2025. When the report issued, the regulation allowed credits only after an inmate arrived or surrendered at the designated facility. Effective September 30, 2026, after the report, the BOP amended it so that an eligible inmate begins earning credits once the term of imprisonment commences, citing recent court decisions including Miles v. Bowers (1st Cir. 2026). The record identifies five programs Chase completed in holdover status at FCI Victorville. Chief Judge Dolly M. Gee reviewed the contested portions of the report de novo.
The Court’s Holding
The court overruled the objections and accepted the report. On scope, it held that Claim One was not limited to 123 days. The petition alleged unlawful failure to apply credits, "months in line" credits despite continuous eligibility, and accrual from sentencing, so it reasonably covered July 18, 2023 through February 28, 2025. On exhaustion, the court agreed that a BOP program statement and the then-current regulation were official policy that made exhaustion futile when the action was filed, citing Fraley and Ward. It saw no tension with the merits: the policy's conflict with 18 U.S.C. § 3585(a) on when credits begin fits comfortably with ordering the BOP to decide whether his activities qualify. The amended regulation does not change this, because futility is measured at filing under Brown v. Maass, although the court noted the amendment suggests exhaustion would no longer be futile today.
On programming, the court agreed that Chase's activities do not appear categorically excluded by the Approved Program Guide. The Guide is not exhaustive, is updated at least annually, and lists only structured programs, while productive activities can be unstructured. Whether he participated successfully, and how much credit he earned, are for the BOP to decide first. The court said Chase would be entitled to recalculation under either version of the regulation, and treated Miles as persuasive rather than binding support for having the BOP consider whether he sought to participate but was prevented.
Judgment was entered granting the petition. The BOP must identify relevant programming and activities between July 18, 2023 and February 28, 2025. It must determine which qualify as evidence-based recidivism reduction programs or productive activities under 18 U.S.C. § 3632(d)(4)(A), award any credits owed and state the exact number, and explain any activity it does not credit. It must file a status report within 30 days. The BOP must also consider whether Chase participated, or tried to and was prevented, while in Marshals custody (July 18 to December 5, 2023), in holdover at FCI Phoenix (October 27 to November 4, 2024), or at in-transit facilities. Chase need not obtain a certificate of appealability to appeal.
Key Takeaways
- A habeas petition alleging unlawful failure to apply First Step Act credits, with accrual from sentencing, can be read to cover the whole period from sentencing to arrival at the designated facility, not only the days the government concedes.
- Futility of exhaustion is measured when the petition is filed, so a later regulatory change does not undo a futility finding based on policy in force at filing.
- The court did not decide whether particular programming earns credit; the BOP must decide that first and explain any activity it declines to credit.
- The BOP must consider whether Chase was able and willing to participate but was prevented during Marshals custody, holdover and transit.
Why It Matters
This is an unpublished district court order adopting a magistrate judge's report, so it carries no binding precedential weight. It does show how a Central District judge treated the pre-amendment rule that credits begin only on arrival at the designated facility, and the court described the BOP's September 2026 amendment as entirely consistent with Chase's claims.
Much remains open. The court awarded no number of days. The BOP must first decide which activities qualify and how much credit follows, and its status report is due within 30 days. The court did not hold that any specific program counts, and any later dispute over the BOP's calculation is unresolved.