IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

KATORIA M. GREENE,

Petitioner,

v. Case No.: 4:20cv508-MW/MJF

ERICA STRONG,

Respondent.

/

ORDER ACCEPTING AND ADOPTING

REPORT AND RECOMMENDATION

This Court has considered, without hearing, the Magistrate Judge’s Report 

and Recommendation, ECF No. 20, and also has reviewed de novo Petitioner’s 

objections, ECF No. 21. The Magistrate Judge’s factual determination that Petitioner 

completed the exhaustion after the initiation of this habeas action is supported by 

the record. As the Magistrate Judge correctly concluded, exhaustion is a mandatory 

pre-suit requirement. Santiago-Lugo v. Warden, 785 F.3d 467, 474-75 (11th Cir. 

2015); Rodriguez v. Lamer, 60 F.3d 745, 747 (11th Cir. 1995). 

Additionally, unlike the situation in Goodman v. Ortiz, factual disputes still 

exist regarding Petitioner’s eligibility for and participation in various evidencebased recidivism reduction training programs. See Goodman v. Ortiz, No. 20-7582 

(RMB), 2020 WL 5015613, at *2-3 (D.N.J. Aug. 25, 2020) (waiving exhaustion 

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requirement based on Third Circuit law and noting that the issue was one of narrow 

statutory construction because all factual disputes were resolved after respondent 

conceded that the petitioner completed the authorized programs and earned the time 

credits in question). Respondent has not conceded or admitted to any of Petitioner’s 

factual contentions. Nor has Petitioner advanced any argument that Respondent

conceded any of these points. Thus, Goodman is inapposite in the present case. 

Cannata v. United States, No. 4:21-cv-283-MW-HTC, 2021 WL 4254942, at *2 

(N.D. Fla. Aug. 18, 2021) (rejecting application of Goodman because factual 

disputes existed), report and recommendation adopted, 2021 WL 4244283 (N.D.

Fla. Sept. 17, 2021); Caron v. Garrett, No. 7:21-CV-385-MHH-GMB, 2021 WL 

2672049, at *2 (N.D. Ala. June 4, 2021) (same) (collecting cases), report and 

recommendation adopted, No. 7:21-CV-385-MHH-GMB, 2021 WL 2661963 (N.D. 

Ala. June 29, 2021). Development of the record regarding Petitioner’s eligibility for

and participation in, and the applicability of, various evidence-based recidivism 

reduction training programs during the administrative process would be beneficial 

for the parties and the Court.

Furthermore, even if this Court were to excuse Petitioner’s failure to exhaust, 

her petition is premature. Petitioner argues that her claim is not premature because 

the statute “anticipates that some prisoners will complete programs within the two 

(2) year phase-in-period” and that “prisoners who earned sufficient time credits 

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during the phase-in-period could be released prior to the end date for the two-year 

phase in.” ECF No. 21 at 2-3. This argument is also without merit.1 The Magistrate 

Judge correctly analyzed Petitioner’s claim regarding the implementation of the First 

Step Act (“FSA”).

In the text of 18 U.S.C. § 1362(h)(4), Congress used the word “may.” 

Congress typically uses the permissive word “may” to vest discretionary authority, 

not to command an outcome. See Jama v. Immigr. & Customs Enf’t, 543 U.S. 335, 

346-47 (2005); In re Gateway Radiology Consultants, P.A., 983 F.3d 1239, 1257

(11th Cir. 2020). Thus, Congress’s use of the word “may” indicates that Congress 

bestowed on the BOP discretion to award ETC during the phase-in period; Congress 

did not require the BOP to make such awards. Kennedy-Robey v. FCI Perkin, No. 

20-cv-1371, 2021 WL 797516, at *3 (C.D. Ill. Mar. 2, 2021); see Holt v. Warden, 

No. 4:20-CV-04064-RAL, 2021 WL 1925503, at *5 (D.S.D. May 13, 2021) (noting 

that Congress’s use of the word “may” indicates that the BOP’s award of ETCs is 

1 Petitioner asserts that, if the Bureau of Prisons (“BOP”) had awarded her the earned time 

credit (“ETC”) immediately, she would have been entitled to release in September 2021. ECF No.

21 at 2-3. That is incorrect. Petitioner’s projected release date is March 28, 2024, and she will be 

eligible for home detention on September 28, 2023. Id. at 11. By Petitioner’s own admission under 

the FSA she is entitled to—at most—330 days of credit. Id. at 4. More than 800 days separate the 

end of the phase-in period (January 15, 2022) and Petitioner’s projected release date (March 28, 

2024). More than 600 days separate the end of the phase-in period (January 15, 2022) and the date 

that Petitioner likely will be eligible for home detention (September 28, 2023). Thus, even if the 

BOP were to award Petitioner 330 days of credit today, Petitioner still would not be entitled to 

release for a number of months, and she certainly was not entitled to release in September 2021.

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permissible during the two-year phase-in period, not mandatory); see Cannata, 2021 

WL 4254942, at *3. 

The fact that an inmate’s release date is imminent does not change the 

analysis. See Fleming v. Joseph, No. 3:20cv5990-LC-HTC, 2021 WL 1669361, at 

*5 (N.D. Fla. Apr. 7, 2021), report and recommendation adopted, 2021 WL 

1664372 (N.D. Fla. Apr. 28, 2021); Kennedy-Robey, 2021 WL 797516 at *3 (noting 

that “if immediate implementation were mandated, Congress would have used the 

word ‘shall’ and not ‘may’ in 18 U.S.C. § 3621(h)(4).”). In sum, “the Court cannot 

require the BOP to use its discretion when the statute does not.” Kennedy-Robey, 

2021 WL 797516 at *3; Tyree Craig Jones v. Warden Phelps, No. CV 1:21-418-

JFA-SVH, 2021 WL 3668885, at *8 (D.S.C. June 16, 2021) (dismissing the habeas 

petition because “[t]he court has no discretion to disregard the plain language of the 

relevant statutes”), report and recommendation adopted, No. 1:21-CV-00418-JFA, 

2021 WL 3667396 (D.S.C. Aug. 17, 2021).

Not surprisingly, then, most courts that have addressed the issue raised by 

Petitioner have explicitly rejected her argument. These courts have held that “the 

statute contemplates a two-year period for the development of programs and the 

validation of risk assessment tools but does not require the BOP to truncate that 

process and begin to award ETCs during” this “phase in” period. Cohen v. United 

States, No. 20-CV-10833 (JGK), 2021 WL 1549917, at *3 (S.D.N.Y. Apr. 20, 2021). 

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In other words, the statute does not require the BOP to provide credits until the 

phase-in-period is completed. Id. at *3 (collecting cases); see Stucker v. Strong, No. 

4:21-cv-11-MW-MJF, Order Accepting and Adopting Report and Recommendation, 

ECF No. 11 (N.D. Fla. Nov. 29, 2021); Blanco v. Joseph, No. 3:21-cv-904-LC-HTC, 

2021 WL 4444970, at *2 (N.D. Fla. Aug. 26, 2021), report and recommendation 

adopted, No. 3:21-cv-904-LC-HTC, 2021 WL 4440438 (N.D. Fla. Sept. 28, 2021) 

(noting that “courts in this circuit have dismissed similar petitions as premature 

because the FSA provisions do not go into effect until January 15, 2022”) (collecting 

cases). Accordingly, Petitioner’s objections to the Magistrate Judge’s Report and 

Recommendation lack any merit.

Accordingly,

IT IS ORDERED:

The report and recommendation, ECF No. 20, is accepted and adopted as 

this Court’s opinion over Petitioner’s objections. Respondent’s motion to dismiss, 

ECF No. 13, is GRANTED. The Clerk shall enter judgment stating, “The petition 

for writ of habeas corpus, ECF No. 1, is DISMISSED without prejudice.” The 

Clerk shall close the file.

SO ORDERED on December 2, 2021.

s/Mark E. Walker 

Chief United States District Judge

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