UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

MICHAEL TYRONE HERRING,

Petitioner,

v. Case No. 4:20cv249-TKW-HTC

M.V. JOSEPH, WARDEN,

Respondent.

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ORDER

This habeas case is before the Court on the magistrate judge’s Report and 

Recommendation (R&R) (Doc. 6) and Petitioner’s “answer” to the R&R (Doc. 10), 

which the Court treats as an objection pursuant to Fed. R. Civ. P. 72(b)(2). Based 

on the Court’s de novo review of the issues raised in the objection, the Court agrees 

with Petitioner that this case should not be dismissed based on his alleged failure to 

keep the Court apprised of his address because it appears that he has been (and still 

is) at the same institution throughout this case.1 However, the Court agrees with the 

1

 The address provided for Petitioner in the body of the petition is what appears to be the 

correct street address for the Federal Prison Camp-Pensacola, see Doc. 1, at 2, but the return 

address on the envelope in which the petition was mailed to the Court contains a P.O. Box address

for the institution, id. at 13. It is understandable why the Clerk initially used the street address 

rather than the P.O. Box address as Petitioner’s address of record; however, because Petitioner has 

been in the same institution throughout this case and because the Court had the P.O. Box address 

for that institution from the outset of the case (and Petitioner appears to have received all the Orders

sent to that address), the Court sees no reason to dismiss this case simply because the Post Office 

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ultimate disposition recommended by the magistrate judge—i.e., that the petition be 

dismissed.

The Court has not overlooked Petitioner’s argument that he has now 

exhausted his administrative remedies; however, even if that is correct (and it is not 

clear that it is2), the petition is still due to be dismissed because, as explained in the 

R&R, Petitioner has no current right to the relief requested in the petition since the 

Bureau of Prisons (BOP) has until January 2022 to implement the provisions of the 

First Step Act on which the petition is based. Nor has the Court overlooked 

Petitioner’s reference to the CARES Act, see Doc. 10, 4-5; however, putting aside 

the fact that Petitioner did not mention the CARES Act in his petition or his 

administrative appeals, that Act authorizes BOP (not the Court) to release an inmate 

to home confinement sooner than he would otherwise be eligible, and BOP is in a 

(arguably incorrectly) returned the one Order mailed to the institution’s street address as 

undeliverable. See Doc. 5.

2

 The exhibits attached to Petitioner’s “answer” include the BP-11 appeal that he mailed 

to the General Counsel on April 28, 2020. The General Counsel has 40 days from receipt of the 

appeal to respond, but that period can be extended by 20 additional days upon written notice to the 

inmate. See 28 C.F.R. §542.18. Here, if the period was not extended, the fact that Petitioner had 

allegedly not received a response by June 28, 2020, when he mailed the “answer” to the Court (see

Doc. 10, at 23) would mean that Petitioner had exhausted his administrative remedies. See 28 

C.F.R. §542.18 (“If the inmate does not receive a response within the time allotted for reply, 

including extension, the inmate may consider the absence of a response to be a denial at that 

level.”). If, however, the period was extended, then the fact that Petitioner had not received a 

response by June 28, 2020, would not necessarily establish that he exhausted his administrative 

remedies because that date is likely less than 60 days after the General Counsel received the BP11 appeal.

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better position than the Court to determine in the first instance whether a specific

inmate should released sooner based on the conditions at the inmate’s institution.

Accordingly, it is ORDERED that 

1. Petitioner’s objections to the R&R are overruled and the R&R is adopted 

and incorporated by reference in this Order, except as stated above.

2. Petitioner’s §2241 habeas petition (Doc. 1) is DISMISSED.

3. The Clerk shall close the file.

DONE and ORDERED this 6th day of July, 2020.

T. Kent Wetherell, II 

T. KENT WETHERELL, II

UNITED STATES DISTRICT JUDGE

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