Harris v. Warden: § 2241 First Step Act Time-Credit Relief Requires Proof of Actual Qualifying Participation

1. Introduction

In Harris v. Warden, FCI - Leavenworth (10th Cir. Apr. 28, 2026), federal prisoner Sean Harris sought habeas relief under 28 U.S.C. § 2241, claiming the Bureau of Prisons (“BOP”) miscalculated his First Step Act time credits (“FTCs”). His core contention was temporal: he argued he should earn FTCs for the roughly seven months between his sentencing (April 22, 2021) and his arrival at his designated BOP facility (November 17, 2021), a period during which he was partly in BOP “holdover” status and largely “in-transit” in non-BOP facilities.

The case teed up two issues that have divided (or at least actively engaged) federal courts in recent years: (1) when a sentence “commences” for FTC-earning eligibility, and (2) what counts as “successful completion” or “successful participation” in qualifying programming. The Tenth Circuit, however, resolved the appeal on a narrower ground: Harris did not prove he earned any FTCs because he did not show he actually participated in qualifying programming during the disputed period.

2. Summary of the Opinion

The Tenth Circuit affirmed the district court’s denial of § 2241 relief. Although the district court had found an “apparent tension” between the First Step Act (“FSA”) and a BOP regulation that ties FTC earning to arrival at a designated facility, the Tenth Circuit expressly declined to decide those “novel legal questions.” Instead, it held that Harris failed to carry his burden to establish entitlement to credits because the record did not show he “earned” FTCs through “successful completion” of qualifying programming between sentencing and arrival at his designated institution.

The court emphasized that FTCs are awarded for actual participation in qualifying programming, and that a habeas petitioner bears the burden of proving unlawful custody. Harris’s assertions (a survey and work as an orderly) were unsupported by documentation, while BOP records showed no relevant assessment/programming activity until after he arrived at FCI Texarkana.

3. Analysis

3.1. Precedents Cited

Pro se construction and limits

  • Hall v. Bellmon, 935 F.2d 1106 (10th Cir. 1991): The panel reiterated that pro se filings are liberally construed. This principle ensures courts read a prisoner’s pleadings with solicitude, but it does not relieve the prisoner of evidentiary burdens.
  • Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836 (10th Cir. 2005): The court paired liberal construction with an important constraint—courts do not act as counsel by constructing arguments or searching the record. This framing supported the panel’s insistence that Harris needed to supply evidence of credit-earning activity, not just allegations.

§ 2241 as the vehicle for execution-of-sentence disputes

  • McIntosh v. U.S. Parole Comm'n, 115 F.3d 809 (10th Cir. 1997): Used to situate FTC disputes as challenges to the “execution” of a sentence—appropriately brought under § 2241, including claims involving deprivation of time credits.

Burden of proof in habeas

  • Walker v. Johnston, 312 U.S. 275 (1941): The panel relied on Walker for the bedrock rule that a habeas petitioner bears the burden of proving he is held contrary to law. Here, that burden translated into proving that FTCs were actually earned and unlawfully withheld.
  • Espinoza v. Sabol, 558 F.3d 83 (1st Cir. 2009): Cited in accord with Walker to reinforce that the burden rests on the § 2241 petitioner to show unlawful detention.

Standard of appellate review

  • Leatherwood v. Allbaugh, 861 F.3d 1034 (10th Cir. 2017): Provided the standard framework—de novo review of legal conclusions and clear-error review of factual findings. The decisive issue became factual: whether the record substantiated credit-earning participation.

Certificate of appealability not required for federal prisoners under § 2241

  • Eldridge v. Berkebile, 791 F.3d 1239 (10th Cir. 2015): Clarified that Harris did not need a certificate of appealability to appeal denial of § 2241 relief as a federal prisoner.

Substantive FTC principle: eligibility is not enough—participation is required

  • White v. Warden of Fed. Corr. Inst. - Cumberland, 164 F.4th 326 (4th Cir. 2026): The Tenth Circuit leaned on White as persuasive authority for a critical proposition: the FSA’s verbs (“successfully completes,” “shall earn,” “successful participation”) require affirmative, conforming action—i.e., actual programming participation—before credits accrue. The Tenth Circuit applied White’s logic to conclude that, absent evidence of participation, relief fails regardless of debates about when eligibility begins.
  • Benson v. Warden, FCI Edgefield, No. 24-6713, slip op. (4th Cir. Apr. 22, 2026): The panel noted Benson as a cautionary counterpoint—vacatur where the record was not adequately developed for a pro se prisoner’s credit claim. Harris is distinguishable on the Tenth Circuit’s view because he did not meaningfully controvert BOP evidence or supply the kind of available corroboration suggested in Benson.

Persuasive district-court authorities on the two “novel” questions (acknowledged but not decided)

The opinion surveyed the broader landscape:

  • On whether 28 C.F.R. § 523.42(a) improperly defines when FTC earning begins, the court observed that “nearly every” court has found it invalid, citing: Yufenyuy v. Warden, FCI Berlin; Patel v. Barron; Dane v. Bayless; Puana v. Williams; Gale v. Warden, FCI Milan.
  • On whether “successful participation” is tied to BOP-assigned programming based on assessment, the opinion noted many courts uphold the BOP’s approach, citing: Dane v. Bayless; Shemtov v. Birkholz; Dunlap v. Warden, FMC Devens.
  • The panel also acknowledged dissenting approaches (again without deciding), citing: Puana v. Williams and Tantuwaya v. Birkholz.

These citations functioned less as authorities the Tenth Circuit adopted and more as a map of the doctrinal terrain—underscoring that the panel’s holding was intentionally narrower and evidence-driven.

3.2. Legal Reasoning

(a) The court narrowed the dispute to proof of earning, not timing of eligibility

Harris framed the case as a statutory-interpretation conflict: under 18 U.S.C. § 3632(d)(4)(A) and 18 U.S.C. § 3585(a), he argued FTC eligibility begins when a sentence “commences,” which he read as the date he entered federal custody awaiting transport/designation. The district court largely agreed that the BOP’s regulatory definition (earning begins only upon arrival at the designated facility) “directly contradict[ed] the plain language of the FSA.”

On appeal, the Tenth Circuit acknowledged the attention given to that question, but declined to resolve it. Instead, it held that even if Harris were correct on when eligibility begins, he still had to prove the predicate fact that he earned credits—i.e., that he “successfully complet[ed]” qualifying programming during that period.

(b) Burden allocation drove the result

Invoking Walker v. Johnston and Espinoza v. Sabol, the court treated the absence of proof as dispositive. The petitioner’s evidentiary showing was described as “cursory” and “vague,” and he offered no corroborating materials (program records, completion certificates, dates, credit amounts, or BOP approval status).

In contrast, BOP evidence showed:

  • His first risk-and-needs assessment occurred after arrival at FCI Texarkana (Dec. 14, 2021).
  • His earliest qualifying-program-related activity was a waitlist entry (Dec. 2, 2021).

Crucially, Harris did not rebut this with evidence. Under clear-error review of factual findings and the petitioner’s burden to prove entitlement, that asymmetry in the record foreclosed relief.

(c) “Participation” is not a formality—credits are earned through action

Adopting the logic of White v. Warden of Fed. Corr. Inst. - Cumberland, the court emphasized that the FSA’s operative language is action-oriented: credits are earned only “for every 30 days of successful participation” in qualifying programming. The court crystallized the point: “it is not a question of whether he successfully participated; it is a question of whether he participated at all, and the record shows that he did not.”

The doctrinal significance is that FTC litigation may fail without reaching complex statutory/regulatory questions when the petitioner cannot demonstrate actual credit-earning activity in the first place.

3.3. Impact

Practical impact on § 2241 FTC litigation

  • Evidentiary gatekeeping: The decision signals that FTC habeas claims in the Tenth Circuit can be resolved at a threshold factual level: petitioners must substantiate actual participation (and, effectively, credit-eligibility of the activity) with documentary evidence or reliable records.
  • Reduced incentives for advisory rulings on “commencement” disputes: By avoiding the eligibility-timing question, the court shows a preference for judicial minimalism where the record permits. Future petitioners may face pressure to develop a record that makes timing dispositive—otherwise courts may continue to bypass the regulatory conflict.
  • Alignment with the Fourth Circuit’s participation requirement: The reliance on White v. Warden of Fed. Corr. Inst. - Cumberland promotes inter-circuit convergence on a core proposition: FTCs are not automatic upon custody status; they are earned through participation.

Doctrinal impact on the unresolved FSA questions

Although the panel did not decide whether 28 C.F.R. § 523.42(a) is invalid, it highlighted the strong prevailing trend against the regulation’s “designated facility” start date. That discussion may influence district courts within the Tenth Circuit by reinforcing the view that the regulation is at least vulnerable—yet litigants should expect courts to demand proof of actual participation before granting relief.

Institutional impact on BOP recordkeeping and prisoner access to proof

The opinion implicitly elevates the importance of BOP documentation (assessments, waitlists, program assignments, completion records). Petitioners disputing FTC calculations may need to obtain institutional records through administrative channels to avoid being defeated by an undeveloped record—an issue highlighted by the panel’s brief nod to Benson v. Warden, FCI Edgefield (record development concerns in pro se cases).

4. Complex Concepts Simplified

  • First Step Act time credits (FTCs): A statutory reward system under which eligible federal prisoners can earn credits toward pre-release custody or supervised release by completing certain recidivism-reducing programs or productive activities.
  • Risk and needs assessment system (PATTERN / SPARC-13): The BOP’s tools to (1) estimate recidivism risk and (2) identify programming needs. The BOP uses these results to recommend or assign programs.
  • “Qualifying programming”: The opinion uses this umbrella term for “evidence-based recidivism reduction programs” and “productive activities” as described in the FSA.
  • “Successful completion” / “successful participation”: Not merely being eligible or willing; it generally means actually taking part in qualifying programming in a way that satisfies program requirements (and, under BOP regulations, typically programming recommended based on the individualized assessment).
  • 28 U.S.C. § 2241: A federal habeas mechanism used by prisoners to challenge the execution of a sentence (including time-credit calculations), not the validity of the conviction or sentence itself.
  • Burden of proof in habeas: The prisoner must prove entitlement to relief. In FTC cases, that often requires producing evidence of program participation and the credit calculation.

5. Conclusion

Harris v. Warden, FCI - Leavenworth establishes (as persuasive, nonprecedential Tenth Circuit authority) a practical, outcome-determinative rule for FSA time-credit habeas litigation: a prisoner cannot obtain § 2241 relief for allegedly miscalculated FTCs without proving actual participation in qualifying programming sufficient to earn credits. Even amid unsettled questions about when FTC eligibility begins—and notwithstanding widespread skepticism in other courts about the validity of 28 C.F.R. § 523.42(a)—the Tenth Circuit made clear that entitlement turns first on evidence that credits were actually earned. For future petitioners, the case is a roadmap and a warning: litigate the law, but win (or lose) on the record.