Taylor v. Fikes

1

Ephren White Taylor, II, Petitioner, v. Warden J. Fikes, FCI Sandstone, Respondent.

No. 20-cv-1364 (PJS/ECW)

United States District Court, D. Minnesota

December 2, 2022

REPORT AND RECOMMENDATION

Elizabeth Cowan Wright United States Magistrate Judge

This action comes before the Court on Petitioner Ephren White Taylor, II's (“Petitioner” or “Taylor”) Petition for a Writ of Habeas Corpus Under 28 U.S.C. § 2241 (Dkt. 1 (“Petition”)), Respondent Warden J. Fikes' (“Respondent” or “Warden Fikes”) Responses (Dkts. 34, 51), and Taylor's Replies (Dkts. 40 43, 58). This case has been referred to the undersigned for a report and recommendation pursuant to 28 U.S.C. § 636 and Local Rule 72.1. For the following reasons, the Court recommends dismissal of the Petition without prejudice.

I. BACKGROUND

A. Criminal Proceedings in the Northern District of Georgia

In October 2014, Taylor pleaded guilty to conspiracy to commit mail and wire fraud in violation of 18 U.S.C. § 1349 in the U.S. District Court for the Northern District of Georgia (“Northern District of Georgia court”). (See Taylor Dkts. 40, 65 at 1.)^[1] On March 17, 2015, the Northern District of Georgia court held a sentencing hearing and entered judgment on March 24, 2015, sentencing Taylor to 235 months of imprisonment, followed by three years of supervised release. (See Taylor Dkts. 64, 65 at 2-3.) The Northern District of Georgia court ordered Taylor to pay a $100 special assessment, “due immediately,” and over $15 million in restitution (“Restitution Order”). (Taylor Dkt. 65 at 1, 6.) The Restitution Order states:

Restitution is due and payable immediately. The defendant shall make restitution payments from any wages he may earn in prison in accordance with the Bureau of Prisons Financial Responsibility Program. If restitution is not paid in full at the time of [Taylor's] release, payment shall become a condition of supervised release to be paid at a monthly rate of at least $150.00, plus 25% of gross income in excess of $2,300.00 per month.

(Id. at 2.)

Taylor did not directly appeal the Restitution Order. (See generally Taylor Dkt.) In March 2016, however, Taylor moved under 28 U.S.C. § 2255 to challenge his sentence and filed a motion for sentence reduction the next month. (Taylor Dkts. 87, 91.) The United States of America also filed a motion seeking a sentence reduction in May 2016. (Taylor Dkt. 97.) On June 21 2016, the Northern District of Georgia court granted the United States' motion and denied Taylor's, leaving Taylor with a 223-month sentence (“Sentence Reduction Order”) (Dkt. 103), and the U.S. Court of Appeals for the Eleventh Circuit affirmed both decisions in February 2018. (See Dkt. 128; see also United States v. Taylor, 727 Fed.Appx. 979, 979-81 (11th Cir. 2018) (per curiam)).

For his § 2255 motion, Taylor asserted various grounds relating to trial counsel's ineffective assistance and that the Northern District of Georgia district judge erred as to his plea agreement and sentencing. (See generally Taylor Dkt. 87; see also Dkt. 146 at 412.) In January 2019, a Northern District of Georgia magistrate judge entered a report and recommendation for denial of Taylor's § 2255 motion, and in March 2019, a district judge adopted that report and recommendation over Taylor's objections and later denied Taylor's motion for reconsideration of that ruling. (See Taylor Dkts. 146 at 14, 151, 153 at 3, 154, 156, 163.) The district judge also declined to issue Taylor a certificate of appealability (“COA”). (See Taylor Dkt. 153 at 3; cf. 28 U.S.C. § 2253(c) (establishing COA requirement).) Taylor filed a notice of appeal from the March 2019 order, and sought a COA regarding his § 2255 motion from the Eleventh Circuit. (See Taylor Dkt. 157.) The Eleventh Circuit denied Taylor's request for a COA as to his § 2255 motion.^[2](See Dkt. 204; see also Taylor v. United States, No. 19-11082-J, 2020 WL 5634307, *1 (11th Cir. June 15, 2020)).

In December 2019, Taylor filed a motion to modify the Restitution Order pursuant to 18 U.S.C. § 3664(k), claiming in part that the Restitution Order is unlawful; improperly delegates authority to the Bureau of Prisons; and is unclear as to the “payment schedule during his time of incarceration, pre-release custody, and supervised release.” (Taylor Dkt. 177 at 1-4.) The Northern District of Georgia denied that motion on February 28, 2020, and while Taylor appealed that order, he did not appeal the portion of the order denying his request to modify the Restitution Order. (Taylor Dkt. 193 at 2-6, 11; Dkt. 196 at 2-5.)

B. Proceedings in the District of Minnesota

On May 26, 2020, Taylor filed a Petition under 28 U.S.C. § 2241 in this Court, naming as Respondent J. Fikes-the Warden of the Federal Correctional Institution at Sandstone, Minnesota (“FCI-Sandstone”), where Taylor resided when he filed the Petition. (Dkt. 1.) Taylor filed a supporting memorandum on the same day. (Dkt. 2.)

Taylor asserts three grounds in his Petition. In its Order and Report and Recommendation issued on December 10, 2020 (“December 2020 R&R”), the Court recommended dismissal without prejudice of Ground 2 for lack of jurisdiction, as well as dismissal without prejudice of Ground 1 to the extent “Taylor claims that his release date, as calculated by the Federal Bureau of Prisons under the First Step Act, is incorrect.” (Dkt. 13 at 15.) U.S. Chief District Judge Patrick J. Schiltz adopted that recommendation on February 3, 2021. (Dkt. 30 at 12.) Accordingly, the Court only discusses and makes recommendations as to the remaining claims in the Petition in this Report and Recommendation.

Ground 1 of the Petition asserts that the Federal Bureau of Prisons (“BOP”) “has improperly calculated [Taylor's] sentence [and] term of custody by failing to award good conduct time....” as well as First Step Act (“FSA”) earned “time credit towards [his] pre-release custody.” (Dkt. 1 at 10-11 ¶ 13 (capitalization amended); see also Dkt. 2 at 3 ¶ 3.) Taylor contends that a failure to properly calculate his good conduct time (“GCT”) results in “approximately 126 days (4.2 months) of GCT that is missing” and suggests that the BOP has not awarded him appropriate FSA earned time credits (“FSA Credits”) for participating in certain programs and that these issues affect not just his release date, but also his “custody classification, CARES ACT-COVID eligibility and prison security level.” (Dkt. 2 at 3 ¶¶ 4-7.) As discussed above, Ground 1 has been dismissed as to the release date. However, notwithstanding Taylor's failure to explain how the alleged “failures to properly calculate good conduct time, or to credit program participation, affect his custody classification, ‘CARES ACT-COVID eligibility,' or prison security level,” the Court ordered Warden Fikes to respond to Ground 1 as it relates to those topics. (Dkt. 13 at 7, 16.)

Ground 3 suggests that the Restitution Order is “unlawful as it did not specify a payment schedule” and because it states “[r]estitution is due and payable immediately.” (Dkt. 2 at 7 ¶ 38.) Taylor claims that the BOP “lacks the authority to collect restitution payments” through the BOP's Inmate Financial Responsibility Program (“IFRP”)^[3] in the manner in which the BOP is handling Taylor's restitution payments and that the BOP is “failing to follow the U.S. District Court's order that restitution be only taken from [Taylor's] prison wages.” (Id. at 7-8 ¶¶ 33, 37; Dkt. 1 at 11 ¶ 13.) According to Taylor, before May 2019, his IFRP payments “were based upon his prison wages and set at $25 per quarter.” (Dkt. 1 at 11 ¶ 13.) In May 2019, however, after his transfer to FCI-Sandstone, “prison officials increased [Taylor's] amount to $100 per month.” (Id.) Taylor contends that this was unaffordable and led him to “withdr[a]w from the IFRP.” (Id.) In light of this withdrawal, Taylor asks this Court to order “the BOP . . . to not include restitution in its [calculations] until the sentencing court corrects its judgment.” (Dkt. 2 at 8 ¶ 39.)

In the December 2020 R&R, the Court ordered Warden Fikes to provide Respondent's “views as to both this Court's jurisdiction to address Ground 3, as well as its view on Ground 3's merits.” (Dkt. 13 at 15.) The Court also ordered Warden Fikes to provide a recommendation as to whether an evidentiary hearing should be conducted in this case, and ordered Taylor to file a reply to Warden Fikes' response within 30 days of the date the response was filed, should he intend to file one. (Id. at 16.)

On October 19, 2020, Taylor filed a motion for leave to supplement the Petition, as well as a supplemental brief and supporting exhibits (“Motion to Supplement”). (Dkts. 8-11.) That Motion did not substantially change the requests in Taylor's Petition and was granted. (Dkt. 13 at 5-6.)

On December 23, 2020, Taylor filed an Objection to the December 2020 R&R; Warden Fikes responded to Taylor's Objection on January 6, 2021; Taylor filed a Reply to the response on January 21, 2021; and Warden Fikes sought leave to file a Sur-Reply on January 29, 2021. (Dkts. 16, 18, 23, 27.) On December 28, 2020, Taylor filed “Petitioner's Judicial Notice of Adjudicative Facts (Federal Rules of Evidence 201(b))” (“Judicial Notice Motion”) asking the Court to take judicial notice of the Northern District of Georgia's and Eleventh Circuit's dockets as well as certain case law. (Dkt. 17.) The Judicial Notice Motion also asked the Court to conduct an evidentiary hearing on that motion. (Id. at 5.) On February 3, 2021, Chief Judge Schiltz overruled Taylor's Objection to the December 2020 R&R, adopted the December 2020 R&R in its entirety, and granted Taylor's Judicial Notice Motion insofar as Taylor asked the Court to take judicial notice of the Northern District...