Case: 23-50159 Document: 47-1 Page: 1 Date Filed: 03/01/2024
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________
FILED
No. 23-50159 March 1, 2024
____________ Lyle W. Cayce
Clerk
Joseph James Falcetta, Jr.,
Petitioner—Appellant,
versus
G. Rosalez, Warden,
Respondent—Appellee.
______________________________
Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:22-CV-524
______________________________
Before King, Jones, and Oldham, Circuit Judges.
Per Curiam: *
Joseph James Falcetta, Jr., proceeding pro se, brings this petition for a
writ of habeas corpus under 28 U.S.C. § 2241. The district court issued an
order denying in part and dismissing in part. We AFFIRM.
_____________________
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited circumstances set
forth in 5th Circuit Rule 47.5.4.
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No. 23-50159
I.
In 1996, Falcetta and two others, all of whom carried sawed-off
shotguns, robbed a bus transporting people from Texas to a Louisiana casino.
See Falcetta v. United States, No. 20-50247, 2021 WL 5766571, at *1 (5th Cir.
Dec. 3, 2021) (per curiam). Texas sheriff deputies stopped and arrested
them. Id. In June 1997, Falcetta was convicted in federal court of armed
robbery of a motor vehicle, in violation of 18 U.S.C. § 2119, and possession
of a short-barreled shotgun during a crime of violence, in violation of
18 U.S.C. § 924(c). See Falcetta, 2021 WL 5766571, at *1. He was sentenced
to 71 months on the robbery charge and to a consecutive 120-month term on
the firearms charge. Id. He was then returned to state custody and convicted
on related state charges of aggravated robbery. He was sentenced to 44 years
of imprisonment. See id. Falcetta immediately began serving his state
sentence, with credit for time served while awaiting sentencing. The federal
district court advised that Falcetta’s 71-month sentence was to run
concurrently with his state sentence but that the 120-month sentence was to
run consecutively to both sentences as § 924(c)(1) mandates that a sentence
imposed under that section must run consecutively to any other term of
imprisonment. See 18 U.S.C. § 924(c)(1)(D)(ii).
On February 1, 2019, after serving more than 20 years of his state
sentence, Falcetta was paroled and transferred to federal custody to begin
serving his 120-month consecutive federal sentence. Because he had spent
more than 71 months in state custody, his 71-month sentence on the federal
robbery charge was deemed to have been discharged. The Bureau of Prisons
has calculated his projected release date to be August 10, 2027.
Since his conviction, Falcetta has repeatedly sought relief from his
federal sentences. He lost his direct appeal, his § 2255 petition was
dismissed, and his multiple motions to file successive § 2255 motions were
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denied. He has filed multiple § 2241 petitions seeking to have all his
sentences ordered to run concurrently or to have the Bureau give him credit
towards his federal sentence for time he spent in state custody; these
petitions have all been denied as well.
In May 2022, Falcetta filed the instant § 2241 petition, which is at
least his fifth. The magistrate judge initially recommended that the petition
be dismissed for lack of jurisdiction. Falcetta objected, and the magistrate
judge issued an amended report, recommending dismissal. Falcetta objected
to the amended report as well. The district court overruled his objections,
adopted the magistrate judge’s findings and conclusions, and ordered that
denial in part and dismissal in part. Falcetta filed a timely appeal.
II.
A prisoner does not need a Certificate of Appeal to appeal the denial
of a § 2241 petition. Jeffers v. Chandler, 253 F.3d 827, 830 (5th Cir. 2001).
This court reviews the district court’s factual findings for clear error and its
legal conclusions de novo. Id. “A factual finding is not clearly erroneous if
it is plausible in light of the record as a whole.” United States v. Alaniz,
726 F.3d 586, 618 (5th Cir. 2013) (internal quotation marks and citation
omitted). The court “may affirm the denial of habeas relief on any ground
supported by the record.” Scott v. Johnson, 227 F.3d 260, 262 (5th Cir.
2000).
III.
On appeal, Falcetta renews his argument that the Bureau of Prisons
erred when it refused to credit him for having completed a bachelor’s degree,
urging that his degree complied with the pertinent requirements in the
Bureau program statement and that the district court erred in finding to the
contrary. He asserts that the Bureau’s refusal to record his degree adversely
affects his score under the “Prisoner Assessment Tool Targeting Estimated
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Risk and Needs,” or “PATTERN,” and in turn could adversely affect his
ability to be considered for early release under the First Step Act. He does
not claim on appeal that he is entitled to good time credit. Rather, he argues
that he has a constitutionally protected liberty interest in his PATTERN
score.
The First Step Act provides for a system allowing eligible prisoners to
earn time credits toward time in pre-release custody or supervised release for
successfully completing evidence-based recidivism reduction programming
or productive activities. See 18 U.S.C. § 3632(d)(4)(A). The Bureau uses
the PATTERN tool to assess the recidivism risk of each prisoner based on
various factors. Such factors include the inmate’s age, disciplinary record,
and completion of educational programs. See id. The PATTERN tool helps
the Bureau to determine the type of recidivism reduction programming most
appropriate for each inmate. 18 U.S.C. § 3632(a)(3), (a)(5), (b). A system of
time credits and other incentives encourages inmates to participate in this
recidivism reduction programming. Id. § 3632(d). Under certain conditions,
the Bureau may apply earned time credits toward pre-release custody or early
transfer to supervised release under 18 U.S.C. § 3624(g). See 28 C.F.R.
§ 523.44(b).
Under our binding precedent, Falcetta did not have a cause of action
under § 2241 to challenge the Bureau’s alleged failure to credit his bachelor’s
degree. A § 2241 petition “attacks the manner in which a sentence is carried
out or the prison authorities’ determination of its duration.” Pack v. Yusuff,
218 F.3d 448, 451 (5th Cir. 2000). In contrast, a challenge to the conditions
of confinement is not properly brought under § 2241. “If ‘a favorable
determination . . . would not automatically entitle [the prisoner] to
accelerated release,’ the proper vehicle is a § 1983 suit.” Carson v. Johnson,
112 F.3d 818, 820–21 (5th Cir. 1997) (citation omitted); accord Melot v.
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Bergami, 970 F.3d 596, 599 (5th Cir. 2020). The Supreme Court has never
“recognized habeas as an available remedy [if] the relief sought would neither
require immediate or accelerated release nor reduce the level of custody.”
Richard H. Fallon, Jr., et al., Hart and Wechsler’s The
Federal Courts and the Federal System 1403–04 (7th ed.
2015) [hereinafter Hart & Wechsler]. Allowing federal prisoners to
“shoehorn [such] claims into habeas” “would utterly sever the writ from its
common-law roots.” Wilkinson v. Dotson, 544 U.S. 74, 86-87, 125 S. Ct. 1242
(2005) (Scalia, J., concurring).
In Carson, for instance, Texas state prisoner Arthur Carson brought a
habeas corpus petition subject to 28 U.S.C. § 2254 challenging his placement
in administrative segregation. 112 F.3d at 819. He argued that reassignment
from administrative segregation would make him eligible for parole. Id. at
821. This court dismissed his petition. Id. at 819. Reassignment would not
“automatically shorten his sentence or lead to his immediate release”; on the
contrary, “[t]he parole decision still would be within the discretion of the
parole board.” Id. at 821. The court applied a “bright-line rule” in holding
that his suit was “properly characterized as a § 1983 suit,” not a habeas
corpus petition. Id. at 820–21.
Likewise, in Melot, federal prisoner Billy R. Melot brought a habeas
corpus petition under 28 U.S.C. § 2241. 970 F.3d at 597. He challenged the
Warden’s determination that he was ineligible for early release to home
confinement under the First Step Act’s pilot program for elderly offenders.
The Warden had found him ineligible because he was previously sanctioned
for attempted escape. Id. at 597–98. The court reiterated Carson’s “bright-
line rule” that “if a favorable determination of the prisoner’s claim would
not automatically entitle him to accelerated release, then the proper vehicle
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is a civil rights suit.” Id. at 599. Because “Melot’s claim involve[d] his
conditions of confinement,” it was not cognizable under § 2241. Id. 1
The Supreme Court reached a similar result in Wilkinson v. Dotson,
544 U.S. 74, 125 S. Ct. 1242 (2005). State prisoners William Dotson and
Rogerico Johnson brought § 1983 actions challenging Ohio’s parole
procedures. Id. at 76. The two relevant district courts concluded that “the
prisoner would have to seek relief through a habeas corpus suit.” Id. at 77.
The Supreme Court disagreed. As the Court explained, “[s]uccess for
Dotson . . . means at most new eligibility review, which at most will speed
consideration of a new parole application. Success for Johnson means at most
a new parole hearing at which Ohio parole authorities may, in their
discretion, decline to shorten his term.” Id. at 82. “Because neither
prisoner’s claim would necessarily spell speedier release,” the Court stated,
“neither lies at ‘the core of habeas corpus.’” Id. (citation omitted).
Justice Scalia, joined by Justice Thomas, concurred. The habeas
corpus statute does not authorize “federal courts to order relief that neither
terminates custody, accelerates the future date of release from custody, nor
reduces the level of custody.” Id. at 86 (Scalia, J., concurring). “A holding
that this sort of judicial immersion in the administration of discretionary
parole lies at the ‘core of habeas’ would utterly sever the writ from its
common-law roots.” Id. Objecting to such an “expansion of habeas relief,”
Justice Scalia noted that “federal prisoners, whose custodians . . . cannot be
sued under § 1983, have greater incentives to shoehorn their claims into
habeas.” Id. at 87.
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1
In addition, because “Congress has vested the executive branch, not the judicial
branch, with the power to decide which prisoners may participate in the Program,” only
the Warden had authority to determine Melot’s eligibility, not federal courts. Melot v.
Bergami, 970 F.3d 596, 600 (5th Cir. 2020).
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The Bureau’s alleged failure to credit Falcetta with earning a
bachelor’s degree does not necessarily implicate the duration of his
confinement. Such denial might or might not affect his PATTERN score,
given the multitude of factors for consideration. Nor does it necessarily have
a future effect on his eligibility for consideration for pre-release or early
transfer to supervised release. Like the reassignment from administrative
segregation in Cason, see 112 F.3d at 821, or the home confinement in Melot,
see 970 F.3d at 599, consideration of Falcetta’s bachelor’s degree does not
necessarily lead to his speedier release. Like the parole determination
procedure in Wilkinson, it at most means that the Bureau of Prison
“authorities may, in their discretion, decline to shorten his term.” See
544 U.S. at 82, 125 S. Ct. 1242. In other words, “the relief sought would
neither require immediate or accelerated release nor reduce the level of
custody.” Hart & Wechsler, supra, at 1404. Falcetta cannot
“shoehorn [such] claims into habeas” here. Wilkinson, 544 U.S. at 87,
125 S. Ct. 1242 (Scalia, J., concurring).
IV.
Falcetta’s remaining arguments are likewise without merit. His
conclusory assertion that he must be compensated for good time on his
expired sentence is insufficient to show that the district court erred. See Koch
v. Puckett, 907 F.2d 524, 530 (5th Cir. 1990).
His challenge to the Bureau’s administration of the Administrative
Remedy Program has no bearing on the length of his sentence; even if
successful, it would not entitle him to immediate or accelerated release.
Consequently, the claim is not cognizable under § 2241. See Carson, 112 F.3d
at 820–21.
He fails to brief any argument renewing his challenge to the validity of
his conviction, or to the denial of good time credit under the First Step Act.
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Any such challenges have therefore been abandoned. See Yohey v. Collins,
985 F.2d 222, 224–25 (5th Cir. 1993). At any rate, a claim challenging the
validity of the conviction would be barred. See 28 U.S.C. § 2255(e).
Falcetta’s final argument—that he was entitled to immediate release
because federal, not state, authorities first detained him—is a reiteration of
his oft-repeated assertion that his federal and state sentences should have run
concurrently. Because Falcetta did not raise the claim until his objections to
the magistrate judge’s amended report, he forfeited it. Regardless, this
repetitive claim is barred by 28 U.S.C. § 2244(a).
We AFFIRM.
8