Opinion
04-C-528-C.
August 2, 2004
ORDER
In White v. Scibana, 314 F. Supp.2d 834 (W.D. Wis. 2004), I concluded that the Bureau of Prisons was acting contrary to 18 U.S.C. § 3624(b) by calculating petitioner Yancey White's good conduct time on the basis of the actual time he had served rather than his imposed sentence. I granted White's petition for a writ of habeas corpus under 28 U.S.C. § 2241 and ordered the warden to recalculate White's good conduct time in accordance with § 3624(b). Respondent has appealed that decision and the Court of Appeals for the Seventh Circuit has granted respondent's motion for expedited treatment of the appeal and directed that oral argument be scheduled during the month of September.
Like White, Deray Owens is an inmate at the Federal Correctional Institution in Oxford, Wisconsin. His petition under § 2241 raises the same issue as that in White: he alleges that the bureau is calculating his good conduct time on the basis of time served rather than the sentence imposed. Petitioner has paid the $5 filing fee.
In the time that has passed since the Yancey White's petition was granted, several other prisoners at the Oxford facility have filed habeas corpus petitions challenging the Bureau of Prisons's method of calculating their good time credits. I have stayed the proceedings in most of these actions pending a decision on the appeal filed in White's case. I have decided to issue orders to show cause if (1) the petitioner submits a sentence computation from the Bureau of Prisons showing the inmate's term of imprisonment, good conduct time that has been both earned and disallowed, current release date and pre-release preparation date; and (2) I can conclude on the basis of that information that the petitioner would be entitled to imminent release or eligible for an imminent halfway house transfer after his good conduct time is recalculated in accordance with White.
Petitioner's petition is accompanied by a sentence monitoring computation data sheet that shows on November 6, 2003, for a term of 14 months of imprisonment following revocation of his supervised release. Under the Bureau's current computation of petitioner's good time credits at 44 days, his projected release date is October 1, 2004, and his projected pre-release preparation date is August 25, 2004. If petitioner's good conduct time were to be recalculated in accordance with White v. Scibana, 314 F. Supp.2d 834 (W.D. Wis. 2004), his projected release date would be shortened by approximately 10 days, to mid-August. I conclude that petitioner will be irreparably harmed if he is forced to wait until the court of appeals decidesWhite before he can obtain a ruling in his case.
Petitioner does not allege that he has exhausted his administrative remedies. Nevertheless, I will waive this requirement because any delay in receiving relief will cause petitioner substantial prejudice. Gonzalez v. O'Connell, 355 F.3d 1010, 1016 (7th Cir. 2004) (court may waive exhaustion requirements for § 2241 when necessary to prevent prejudice caused by unreasonable delay). Accordingly, respondent will be directed to show cause why this petition should not be granted.
Petitioner should note that because he is not proceeding in forma pauperis, it is his obligation to serve the petition on the respondent. Pursuant to Fed.R.Civ.P. 81, the rules governing service of process in civil actions are applicable to this proceeding because no specific rules governing service of process in § 2241 habeas corpus actions exist elsewhere in a statute or in the Rules Governing Section 2254 and 2255 cases. The rule governing service of process in civil actions brought against a federal official in his official capacity is Fed.R.Civ.P. 4(i). According to this rule, petitioner's petition, which I construe to include his July 29 submission, must be sent with a copy of this court's order by certified mail to: 1) the respondent; 2) the United States Attorney for the Western District of Wisconsin; and 3) the Attorney General in Washington, D.C. The address for the United States Attorney in this district is: The Hon. J.B. Van Hollen, 660 W. Washington Ave., Madison, WI, 53703. The address for the Attorney General in Washington, D.C. is: The Hon. John Ashcroft, United States Attorney General, 950 Pennsylvania Ave., N.W., Rm. 5111, Washington, DC 20530. Enclosed to petitioner with a copy of this order are the extra copies of his petition and this court's order.
ORDER
IT IS ORDERED that respondent may have until August 10, 2004, in which to show cause why this petition for a writ of habeas corpus should not be granted on petitioner's claim that the Bureau of Prisons is calculating his good time credits in violation of 18 U.S.C. § 3624(b)(1). There is no need for a traverse.