Cross v. Warden
- John Docherty
- 0:25-cv-02170
- U.S. District Court · District of Minnesota
- 5
In Deangelo Cross v. Warden, FPC Duluth, Magistrate Judge Docherty recommends denying federal prisoner DeAngelo Cross's petition asking the court to order the Bureau of Prisons to award him First Step Act time credits, because Cross did not complete the required internal prison grievance process before coming to court.
Federal prisoners who seek to earn First Step Act time credits and have not yet completed the Bureau of Prisons' full internal administrative grievance process (facility level, then Regional Office, then Central Office) before filing a habeas petition in federal court.
What happened
In Deangelo Cross v. Warden, FPC Duluth (Case No. 25-CV-2170), federal prisoner DeAngelo Cross asked the court to order the Federal Bureau of Prisons (BOP) to award him time credits under the First Step Act of 2018 — a law that allows some prisoners to earn time off their sentences by participating in approved programs designed to reduce the chances they will reoffend. Cross argued that he had actively participated in such programs but had not received the credits he believed he was owed. The BOP's position, as explained in its written response to Cross's grievance, was that because one of his sentences involved unlawful use of a firearm during a crime of violence — a category the law explicitly makes ineligible for time credits — none of his sentences qualified.
Before a federal prisoner can ask a court to intervene in a dispute with the BOP, he is generally required to work through the BOP's own multi-step internal complaint process — starting at the facility level, then appealing to the Regional Office, and finally to the Central Office — before going to court. Cross submitted one grievance to the Warden and received a written denial, but he did not appeal that denial to the Regional or Central Offices. He argued the court should excuse this requirement because further appeals would be pointless (since the BOP would just keep saying no) and because being denied the credits was causing him irreparable harm every month. The court found neither argument persuasive: the mere belief that the BOP will reject a claim does not make further appeals pointless, and because Cross is not scheduled for release until September 2028, he has enough time to complete the process.
Magistrate Judge Docherty recommends that Cross's petition be denied without prejudice — meaning Cross is not barred from refiling after he completes the administrative process — and that the case be dismissed. Because this is a Report and Recommendation from a magistrate judge rather than a final order, Cross has 14 days from receiving it to file written objections with the District Court.
The detailed version
Case: Deangelo Cross v. Warden, FPC Duluth, No. 25-CV-2170 (JWB/JFD) (D. Minn.). Report and Recommendation issued October 7, 2025, by United States Magistrate Judge John F. Docherty.
Background
DeAngelo Cross was convicted in 2000 of four counts of Armed Bank Robbery and one count of Use of a Firearm During a Crime of Violence, and was originally sentenced to 304 months of imprisonment. That sentence was reduced in 2018 to time served, and Cross was released on September 24, 2018, to a five-year term of supervised release. He subsequently reoffended, violating a condition of his supervised release, and received a 20-month term of imprisonment for the violation. He was also sentenced to a 60-month term for a new conviction — Felon in Possession of a Firearm — to run concurrently with the 20-month sentence. Cross's projected release date is September 2028.
Statutory Framework
The First Step Act of 2018 (FSA), codified at 18 U.S.C. § 3632(d)(4), allows eligible prisoners to earn Federal Time Credits (FTCs) toward early release or prerelease placement (such as a halfway house) by participating in evidence-based recidivism reduction (EBRR) programming. However, the statute explicitly excludes prisoners serving sentences for certain offenses from earning FTCs. One such excluded category is unlawful possession or use of a firearm during a crime of violence. 18 U.S.C. § 3632(d)(4)(D)(xxii). The BOP treats multiple terms of imprisonment as a single aggregate term, meaning that if any one sentence renders a prisoner ineligible, the prisoner is ineligible across all sentences.
Procedural History
On approximately January 13, 2025, Cross filed Administrative Remedy 1225085-F1 with the Warden, requesting application of FSA credits. On January 23, 2025, the Warden denied the request, citing the aggregation rule and Cross's ineligibility due to his firearm conviction. Cross did not appeal the Warden's denial to the BOP's Regional Office or Central Office. He then filed a petition for a writ of habeas corpus under 28 U.S.C. § 2241 in federal district court. The Warden opposed the petition both on the merits and on the ground that Cross had failed to exhaust administrative remedies.
Legal Standard — Exhaustion of Administrative Remedies
While 28 U.S.C. § 2241 does not contain a statutory exhaustion requirement, the Eighth Circuit Court of Appeals has long required federal prisoners to exhaust the BOP's administrative remedy program before seeking habeas relief. See Mathena v. United States, 577 F.3d 943, 946 (8th Cir. 2009); United States v. Chappel, 208 F.3d 1069 (8th Cir. 2000). Exhaustion serves two purposes: it gives the agency the opportunity to correct its own errors without judicial intervention, and it develops the factual and legal record before the matter reaches the court. Courts may excuse exhaustion where there are time constraints or where pursuing administrative remedies would obviously be futile. Henderson v. Eischen, No. 23-CV-1336 (NEB/ECW), 2023 WL 4422535 (D. Minn. June 7, 2023).
Analysis
The court identified two exhaustion exceptions raised by Cross and rejected both.
1. Futility: Cross argued that appealing within the BOP would be futile because the BOP would categorically deny his claim. The court rejected this, citing Abieanga v. Eischen, No. 24-CV-3131 (JWB/JFD), 2024 WL 4557612 (D. Minn. Sept. 18, 2024), for the proposition that a prisoner's belief that the BOP will disagree does not make the administrative process futile. The court also noted, citing Phelan v. Eischen, No. 25-CV-1724 (NEB/JFD), 2025 WL 2394006 (D. Minn. July 1, 2025), that as FSA litigation continues to develop around the country, past BOP practice is not a guarantee of future outcomes.
2. Irreparable Harm / Time Constraints: Cross argued that every month without the credits irretrievably deprives him of liberty. The court rejected this for two reasons: first, Cross is not scheduled for release until September 2028, giving him ample time to exhaust administrative remedies; second, even if he were closer to release, he could have pursued the administrative process sooner, and a prisoner cannot manufacture urgency by delaying and then seeking judicial relief at the last moment.
Ruling
Magistrate Judge Docherty recommends that Cross's petition for a writ of habeas corpus be DENIED WITHOUT PREJUDICE (meaning Cross may refile after completing the administrative remedy process) for failure to exhaust administrative remedies, and that the case be DISMISSED. The court explicitly did not reach the merits of whether Cross is in fact eligible for FSA time credits.
Objection Procedure
Because this is a Report and Recommendation from a magistrate judge, it is not a final order. Any party may file written objections within 14 days of being served with the report, and the opposing party may respond within 14 days of receiving the objections. The matter is then reviewed by the District Judge assigned to the case. The Report and Recommendation is not directly appealable to the Eighth Circuit.
Reviewer note from the AI+
Read the full 5-page opinion on CourtListener, the free public archive maintained by the Free Law Project.