Montano v. King

Background

Felix Aguirre Montano filed an amended petition for a writ of habeas corpus, meaning a request for an order concerning the legality or duration of his custody. He asked the court to require the Bureau of Prisons to apply his previously earned First Step Act time credits to his sentence calculation. According to Montano, applying the credits would result in his immediate release.

Montano had pleaded guilty to conspiracy to possess with intent to distribute five kilograms or more of cocaine while on board a vessel subject to United States jurisdiction. He was sentenced to 96 months in prison followed by five years of supervised release. While he was housed at the Federal Correctional Institution in Sandstone, Minnesota, Immigration and Customs Enforcement issued a document titled “Notice and Order of Expedited Removal.”

The Bureau of Prisons told Montano that he could not apply First Step Act time credits because he was subject to a final order of removal. Montano initially said he did not remember attending a removal hearing or receiving a removal order. He later argued that the document showed only a determination of inadmissibility and therefore did not establish that he was subject to a final removal order.

Court’s analysis

The court first determined whether Montano was subject to a final removal order. It concluded that the submitted document was a final order of removal. The document’s top portion was labeled “Notice and Order of Expedited Removal,” and its bottom portion was headed “Order of Removal Under Section 235(b)(1) of the Act.” The court found that the document specifically ordered Montano removed from the United States.

The court also explained that it lacked authority to decide a challenge to the constitutional validity of the removal order. Under the cited law, that authority belonged exclusively to the appropriate court of appeals. Montano therefore could not obtain habeas relief in this district court by challenging the validity of the removal order.

The court then applied the First Step Act. That law permits certain federal prisoners to earn time credits through qualifying programs and activities. But it states that a prisoner is ineligible to apply those credits toward prerelease custody or supervised release if the prisoner is subject to a final order of removal under the immigration laws.

Because Montano was subject to the removal order, the court concluded that he was ineligible to apply his previously earned First Step Act credits to his sentence calculation. The court therefore found that he was not entitled to the requested relief.

Recommended disposition

The magistrate judge recommended that Montano’s amended habeas petition be denied and that the action be dismissed with prejudice. The document is a report and recommendation rather than an order or judgment of the District Court. It states that objections could be filed within 14 days after service and that the recommendation was not directly appealable to the Eighth Circuit.