We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

NOTHING NEW ON NOVEMBER 1

November 1^st is a date with almost mythical status among federal prisoners, the day – according to rumor – that all sorts of new laws become effective, the front gates swing open, and everyone goes home.

The only magic that November 1 brings is that it’s the date on which Sentencing Guidelines amendments become effective. The 2026 Amendments – which change § 2B1.1 loss tables, pump up fentanyl punishment, and simplify multiple count adjustments – ARE NOT RETROACTIVE. This means that even if one of the few changes would benefit your Guidelines score, if you’re already sentenced, there’s no going back.

 Oh, yeah. There are no changes to the methamphetamine laws, either.

SCOTUS FSA HABEAS CASE GETS ARGUED TODAY

Maxwell v. Dinis, perhaps the most important post-conviction case of this Supreme Court term, will be argued today. Maxwell considers a federal inmate’s ability to use the habeas statute, 28 USC § 2241, to contest the Federal Bureau of Prisons’ placement decisions under the First Step Act, in this case, a refusal to accelerate the inmate’s transfer to a halfway house or home confinement due to earned time credits under 18 USC § 3632.

The FSA permits prisoners to earn time credits for completing programming that reduces recidivism. An inmate’s first 365 credit days reduce his or her sentence by up to a year.  Any leftover credits entitle the prisoner to extra time in a halfway house or home confinement.

Time in halfway house and on home confinement is still time in BOP custody. Thus, it is distinct from time on supervised release, a separate portion of the sentence that begins after imprisonment ends and is overseen by the US Probation Office.

Bill Maxwell has been serving a white-collar sentence of 20 years. His BOP record was spotless, and he completed a large number of programs that earned him FSA credits. He got crosswise with the BOP over whether it had properly counted all of his credits, complaining that he was being shorted by about 42 months.

Bill filed a petition for habeas corpus under 28 USC § 2241, seeking a court order that he be given his extra credits. The District Court dismissed the petition because it said Max had not exhausted his remedies. The 5^th Circuit affirmed the dismissal but for different reasons. All Bill was asking for was designation to halfway house or home confinement, and those are placements still under BOP custody. The 5^th Circuit has a bright-line rule that habeas relief under § 2241 is unavailable unless grant of the requested relief would entitle the inmate to quicker release from BOP custody. That rule doomed Bill’s petition.

Supreme Court precedent leaves it unclear that a federal inmate can use habeas corpus to challenge conditions of his confinement, such as an inmate’s placement in solitary confinement or in a maximum-security facility. When state inmates have brought such claims, the court has said that they may raise those only under 42 USC § 1983, not via habeas. That statute lets people challenge the constitutionality of actions by state and local officials, but not federal officials.

However, in the 2023 Jones v. Hendrix decision, the Supreme Court held that habeas remains available as a procedural mechanism for a federal prisoner to challenge “the legality of his detention” without attacking “the validity of his sentence.” What Bill is trying to do – contest the BOP’s refusal to apply time credits under the FSA to accelerate his transfer to a halfway house or home confinement – can be described as challenging the legality of his detention inside a low-security facility instead of pre-release custody. In 1973, the Supreme Court held in Preiser v. Rodriguez that a state prisoner must use a habeas petition – and not 42 USC § 1983 – to challenge the state denial of good-conduct time credits.

Bill is arguing that habeas relief is available for claims seeking to “reduce the prisoner’s level of custody” (quoting Justice Antonin Scalia’s concurrence in the 2005 case Wilkinson v. Dotson. He also points out that if he can’t use a 28 USC § 2241 habeas petition, he has no other alternative. SCOTUS has severely limited plaintiffs’ abilities to bring a civil-rights suit under Bivens v Six Unknown Named Agents of the Federal Bureau of Narcotics, for example, and federal law has no analog statute to 42 USC § 1983 permitting similar suits against federal. Even the Administrative Procedure Act (5 USC 551 et seq) is unavailable because 18 USC § 3625 makes it inapplicable to most BOP matters.

The government agrees with Bill that a § 2241 habeas action should be available to him to challenge the BOP denial of FSA credits for pre-release placement, although it clearly does not think the use of habeas should be as expansive as Bill does. Because the government has taken Bill’s position, more or less, the Supremes have appointed a lawyer to play devil’s advocate, and argue that the 5^th Circuit is right. (This is usual practice at SCOTUS, intended to be sure all sides of the issue are aired).

The lawyer supporting the 5^th Circuit’s standard argues that habeas relief should only be available if the inmate’s claim implies that actual physical detention must be shortened, if he or she is entitled to earlier release on bail or parole; or if the sentencing court ordered the prisoner to serve a sentence in a place it lacked jurisdiction to send him or her.

SCOTUSBlog said, “It is unclear whether the justices will find the amicus’ proposed circumstances appealing. But the amicus’s sustained attacks on the difficulties in applying Maxwell’s and the government’s position may well attract their interest.”  Regardless, the first post-Jones review of the parameters of § 2241 should either greatly benefit inmates or be the death knell for § 2241.

Maxwell v. Dinis, Case No. 25-5930 (Oral argument November 2, 2026)

SCOTUSBlog.com, Court to consider federal inmate’s ability to use habeas to accelerate transfer to a halfway house or home confinement (October 28, 2026)

~ Thomas L. Root