Background
Todd McDonald appealed the denial of his petition for habeas corpus under 28 U.S.C. § 2241 by the U.S. District Court for the Northern District of Texas. His appeal presented three distinct challenges concerning First Step Act (FSA) time credits and prerelease home confinement. The Fifth Circuit issued an unpublished per curiam opinion, with Judge James E. Graves, Jr. dissenting in part.
First, McDonald sought FSA time credits for approximately three months between the FSA’s effective date and his arrival at his designated Bureau of Prisons (BOP) facility. The district court ruled against him because he had not shown that he participated in evidence-based recidivism-reduction (EBRR) programming or productive activities (PAs) during that period. Second, he sought reinstatement of credits for September 17 through December 11, 2020, when he was placed on “disallow” status after declining to participate in an Inmate Financial Responsibility Program (IFRP). Third, he challenged the denial of his request for immediate release to home confinement, which the district court held was not cognizable under § 2241.
The Court’s Holding
The Fifth Circuit affirmed the district court’s judgment. On the first claim, the court emphasized that McDonald’s briefing focused on the statutory text and BOP’s implementing regulation but did not address the actual basis for the district court’s ruling: his failure to demonstrate participation in qualifying programming before arriving at his designated facility. McDonald did not dispute that conclusion on appeal. Relying on Hogan v. Rodriguez, No. 25-50315, 2026 WL 3032109, at *3 (5th Cir. Oct. 9, 2026), the court explained that participation in EBRR programming or PAs is a necessary predicate to earning FSA credits. His failure to substantiate participation during the relevant period was therefore fatal to that claim.
On the second claim, the court held that McDonald was not entitled to restoration of the disallowed credits because reinstatement is discretionary with BOP. The governing regulation provides that an inmate who has lost FSA credits “may” have some or all restored on a case-by-case basis after clear conduct for two consecutive risk and needs assessments. 28 C.F.R. § 523.43(c). Although McDonald maintained that he had “been clear” since 2019, that assertion did not entitle him to reinstatement. He also had not alleged that BOP’s refusal was an abuse of discretion. The court added that he could not make such a showing on this record because evidence showed that the credits were refused based on his failure to abide by the IFRP’s conditions. It cited Superintendent, Massachusetts Correctional Institution v. Hill, 472 U.S. 445, 455 (1985), for the proposition that due process is satisfied when some evidence supports a prison disciplinary decision revoking good-time credits.
On home confinement, the court identified two independently sufficient grounds for affirmance. Under Melot v. Bergami, 970 F.3d 596, 599 (5th Cir. 2020), prerelease home confinement is a change in conditions of confinement, not release from custody, and the request therefore was not cognizable under § 2241. In addition, inmate placement lies within BOP’s discretion, as the district court noted by citing United States v. Sneed, 63 F.3d 381, 388 n.6 (5th Cir. 1995). The court further concluded that McDonald had abandoned the issue through inadequate briefing, even under the liberal construction afforded pro se litigants. He merely renewed his request for home confinement without identifying any error in the district court’s cognizability analysis. The court cited Yohey v. Collins, 985 F.2d 222, 224–25 (5th Cir. 1993), and Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987).
Key Takeaways
- A prisoner seeking FSA credits must substantiate participation in qualifying EBRR programming or productive activities; textual arguments about the statute and regulation did not address the dispositive evidentiary deficiency here.
- Restoration of lost FSA credits under 28 C.F.R. § 523.43(c) is discretionary and case-specific, and McDonald neither alleged nor could establish an abuse of that discretion on this record.
- The request for prerelease home confinement was not cognizable under § 2241, and McDonald independently abandoned appellate challenge by failing to identify error in the district court’s analysis.
- Judge Graves dissented in part, objecting to the majority’s reliance on McDonald’s failure to substantiate participation in programs BOP had not suggested it offered and reaffirming relevant portions of his Hogan dissent.
Why It Matters
The decision applies Hogan to reject an FSA-credit claim where the petitioner did not substantiate participation in qualifying activities during the period at issue. It also distinguishes an asserted entitlement to restored credits from a challenge to the manner in which BOP exercised its discretion: McDonald’s claim failed on the former basis, and he had not alleged the latter.
The home-confinement ruling is likewise tied to the relief requested and the arguments presented. The court relied on existing Fifth Circuit precedent concerning § 2241 cognizability and BOP placement discretion, while separately treating McDonald’s failure to engage the district court’s reasoning as abandonment. Judge Graves’s partial dissent was confined to the participation-based rationale for denying credits and did not extend to the opinion’s other rulings.