Depoister v. Birkholz
- Eric Tostrud
- 0:21-cv-00684
- U.S. District Court · District of Minnesota
- 8
In Depoister v. Birkholz, Judge Tostrud denied without prejudice a prisoner’s petition as premature because First Step Act credits were not yet required.
The ruling directly affected Toby L. Depoister’s request for First Step Act time credits and confirmed that the Bureau of Prisons retained discretion to apply such credits during the statutory phase-in period.
What happened
In Depoister v. Birkholz, Toby L. Depoister challenged the warden’s refusal to apply 154 days of First Step Act time credits for programming and employment. He argued that applying the credits would move his release date to August 25, 2021.
The court ruled that the Bureau of Prisons could choose whether to apply these credits during the law’s two-year implementation period. Because that period was not due to end until January 15, 2022, Depoister’s request was premature.
Judge Tostrud overruled Depoister’s objections, accepted the magistrate judge’s recommendation, and denied the petition without prejudice. The court did not decide the Government’s separate arguments about Depoister’s eligibility or the number of credits he had earned.
The detailed version
- Depoister v. Birkholz · No. 0:21-cv-00684
- Eric Tostrud
- Aug. 9, 2021
Background
Toby L. Depoister filed a petition under 28 U.S.C. § 2241, a procedure allowing a federal prisoner to challenge the execution of a sentence. He challenged the warden’s refusal to apply time credits under the First Step Act. Depoister claimed 154 days of credits for participating in programming and employment, and said he expected to earn additional credits. He asserted that applying the credits would move his release date to August 25, 2021.
Depoister had not fully completed the Bureau of Prisons’ administrative appeal process before filing the petition. He later completed that process, and the court concluded that this cured the exhaustion issue sufficiently for the court to review the petition.
Report and Recommendation and Objections
Magistrate Judge Becky R. Thorson recommended denying the petition. She concluded that Depoister’s claims were not ripe, meaning the legal dispute was not yet ready for a court decision, because the First Step Act did not require the Bureau of Prisons to provide the requested time-credit implementation until January 15, 2022.
Depoister objected. He argued that the Act’s two-year phase-in period did not apply to time credits for evidence-based recidivism-reduction programs and productive activities. He also argued that the Act’s use of the word “shall” required the Bureau of Prisons to apply credits after July 19, 2019.
Court’s Analysis
The court reviewed the objections independently. It interpreted the First Step Act’s text, including 18 U.S.C. §§ 3621(h) and 3632(d)(4).
The Act required the Bureau of Prisons to develop and implement a risk-and-needs assessment system and provided for a two-year phase-in period. During that period, 18 U.S.C. § 3621(h)(4) stated that the Bureau of Prisons “may” offer incentives and rewards, including the time credits described in § 3632(d)(4). The court treated “may” as granting discretion.
The court rejected Depoister’s argument that the word “shall” in § 3632(d)(4) made credit application mandatory immediately. It explained that the mandatory requirement would apply after the phase-in period, while credit application remained discretionary during that period. The court also rejected his argument that this interpretation made other statutory language meaningless.
The opinion noted that the Government separately disputed Depoister’s eligibility for early release based on his risk score and disputed his calculation of the credits, asserting that he had earned only about two days. Because the court concluded that the petition was premature, it did not resolve those separate disputes.
Disposition
The court overruled Depoister’s objections, accepted the Report and Recommendation, and denied the § 2241 petition without prejudice. The court entered judgment accordingly. The order’s use of “without prejudice” means the denial did not bar a later filing, but the opinion did not decide whether Depoister was eligible for the claimed credits or how many credits he had earned.
Read the full 8-page opinion on CourtListener, the free public archive maintained by the Free Law Project.