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nothing that calculating good-time credit on time actually served is a reasonable interpretation
Summary of this case from Williams v. Van BurenOpinion
No. 4:04-CV-642-A.
November 18, 2004
MEMORANDUM OPINION and ORDER
Came on for consideration the petition of Deana Renee Pollard for a writ of habeas corpus under 28 U.S.C. § 2241. Petitioner argues that 18 U.S.C. § 3642(b) requires that good conduct time credit be calculated based on the judicially imposed sentence, and that the Bureau of Prisons ("BOP") has deprived her of good conduct time by calculating the credit on the basis of actual time served.
The Fifth Circuit has yet to determine if § 3624(b) creates a constitutionally protected interest in good time credits.Belasco v. Bidden, 89 Fed. Appx. 896, 2004 WL 376901 (5th Cir. March 1, 2004) (unpublished) (citing Henson v. U.S. Bureau of Prisons, 213 F.3d 897, 898 (5th Cir. 2000)). The court assumes without deciding that the petitioner does have a constitutionally protected interest in such credits. See Henson, 213 F.3d at 898.
As a preliminary matter, a prisoner is required to "exhaust his administrative remedies before seeking habeas relief in federal court under 28 U.S.C. § 2241." Fuller v. Rich, 11 F.3d 61, 62 (5th Cir. 1994). Exceptions are appropriate where the available remedies are either unavailable or inappropriate to the relief sought, or where the attempt to exhaust such remedies would be patently futile. Id. In light of the BOP's published regulations, see, e.g., 28 C.F.R. § 523.20, the court finds that exhaustion would be patently futile, and the petition should be decided on the merits. See, e.g., Tasby v. Pratt, No. 4:01-CV-0959-A, 2002 WL 1160071 at *2-3 (N.D. Tex.).
Although the Fifth Circuit has not addressed the issue, the Ninth and Sixth Circuits have held that the BOP's interpretation of § 3624(b) is reasonable and entitled to deference.Pacheco-Camacho v. Hood, 272 F.3d 1266 (9th Cir. 2001); Brown v. Hemingway, 53 Fed. Appx. 338 (6th Cir. 2002) (unpublished). The majority of district courts addressing the issue have followed these decisions. See, e.g., Graves v. Bledsoe, 334 F.Supp.2d 906 (W.D. Va. 2004); Belasco v. Bidden, No. 1:03-CV-165-C, 2004 WL 2381248 (N.D. Tex. Oct 22, 2004);Martinez v. Wendt, No. 3:03-CV-0826-L, 2003 WL 22456808 (N.D. Tex. 2003) (Findings, Conclusions, and Recommendation), adopted by 2003 WL 22724755 (N.D. Tex. 2003). This court agrees.
The court concludes that calculating good conduct time credit based on time actually served is a reasonable interpretation of 18 U.S.C. § 3624(b), and that petitioner has failed to allege a constitutional violation. Consequently, "it appears from the application that [petitioner] is not entitled" to a writ of habeas corpus. 28 U.S.C. § 2243. Accordingly,
The court ORDERS that the above-described petition for writ of habeas corpus be, and is hereby, denied.