Opinion
In accordance with this court's case assignment procedure, this action should have been directly assigned to District Judge Barbara M.G. Lynn, the sentencing judge. A proposed order reassigning this case has been forwarded to Judge Jorge A. Solis contemporaneously with the filing of this recommendation.
March 3, 2005.
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636(b), and an order of the court in implementation thereof, this case has been referred to the United States Magistrate Judge. The findings, conclusions and recommendation of the Magistrate Judge, as evidenced by his signature thereto, are as follows:
FINDINGS AND CONCLUSIONS:
Type of Case: This is a petition for a writ of habeas corpus brought by a federal prisoner pursuant to 28 U.S.C. § 2241. Petitioner has paid the $5 filing fee.
Parties: Petitioner is presently confined at CCA Wilmer in Wilmer, Texas. Respondent is the Bureau of Prisons (BOP). The court has not issued process in this case.
Statement of Fact: On September 28, 2001, Petitioner was convicted in this court of conspiracy to commit mail fraud and was sentenced to forty-six months imprisonment. See United States v. Geis, 3:00cr324-M (N.D. Tex., Dallas Div.).
In this action Petitioner challenges the BOP's calculation of good time credits under 18 U.S.C. § 3624(b). (Petition (Pet.) at 2). He seeks credit for an additional twenty-seven days of good-time credits — the difference between the 47 days of good time credits he earned for each year served in prison, and the 54 days he claims to be entitled to for every year imposed at the time of sentencing. (Pet. at 1-2). Findings and Conclusions: Petitioner's challenge to the method of the BOP's calculation of good time credits lacks any merit. Although the Fifth Circuit has not yet addressed the issue, other circuit courts have determined that the BOP's interpretation of 18 U.S.C. § 3624(b) as embodied in 28 C.F.R. § 523.20 is reasonable and entitled to deference under Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 844, 104 S.Ct. 2778, 2782, 81 L.Ed.2d 694 (1984). See Perez-Olivio v. Chavez, 394 F.3d 45, 48-54 (1st Cir. 2005);White v. Scibana, 390 F.3d 997, 999-1003 (7th Cir. 2004);Pacheco-Camacho v. Hood, 272 F.3d 1266, 1269-71 (9th Cir. 2001), cert. denied, 535 U.S. 1105 (2002); Brown v. Hemingway, 53 Fed. Appx. 338, 2002 WL 31845147, at *1 (6th Cir. Dec. 16, 2002) (unpublished) (No. 02-1948).
Federal prisoners must exhaust 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 to the exhaustion requirement apply only in "extraordinary circumstances" when administrative remedies are unavailable or wholly inappropriate to the relief sought, or where the attempt to exhaust such remedies would itself be a patently futile course of action." Id.
Petitioner admits that he did not pursue his administrative remedies and argues that he should not be required to do so because it would be futile given the short time remaining on the incarcerative portion of his sentence and because it is clear that the claim will be rejected by the Bureau of Prisons. (Pet. at 3). Because Petitioner is scheduled for release in less than one month, adherence to the exhaustion requirement in this case would serve no purpose other than delay. Thus, the court will address the claims on the merits.
Several of this court's judges have also rejected good-conduct-time claims similar to the ones in this case, and upheld the BOP's interpretation and application of 18 U.S.C. § 3624(b). See Williams v. Van Buren, No. 4:04-CV-525-Y, 2004 WL 3019446, at *1 (N.D.Tex. Dec. 29, 2004);Harvey v. Joslin, No. 3:04-CV-1811-N, 2004 WL 2645550 (N.D. Tex. Nov. 18, 2004), report and recommendation adopted 2004 WL 2805818 (N.D. Tex. Dec. 6, 2004); Pollard v. Van Buren, No. 4:04-CV-642-A, 2004 WL 2645548, at *1 (N.D.Tex. Nov. 18, 2004);Belasco v. Bidden, No. 1:03-CV-165-C, 2004 WL 2381248, at *2 (N.D.Tex. Oct.22, 2004); Martinez v. Wendt, No. 3:03-CV-826-L, 2003 WL 22456808, at *2-4 (N.D.Tex. Oct.24, 2003), report and recommendation adopted, 2003 WL 22724755 (N.D.Tex. Nov. 18, 2003).
Based upon these persuasive authorities, the District Court should likewise conclude that the BOP's method of calculating good-time credit is reasonable and entitled to deference. Thus, the petition for writ of habeas corpus should be summarily dismissed. See Rules 1 and 4, of the Rules Governing § 2254 Proceedings in the District Court (Rule 1(b) permits the application of these Rules to habeas corpus petitions not covered by Rule 1(a), and Rule 4 provides that "[i]f it plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court, the judge shall make an order for its summary dismissal and cause the petition to be notified."). RECOMMENDATION:
For the foregoing reasons it is recommended that the habeas corpus petition be summarily dismissed.
A copy of this recommendation will be mailed to Petitioner Mark Thomas Geis, #34731-077, CCA Wilmer, 450 Wintergreen Road, Wilmer, Texas 75172.