Opinion
3:03-Cv-082b-L
October 24, 2003
FINDINGS, CONCLUSIONS, AND RECCOMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636(b) and a standing Order of the Court in implementation thereof, the subject cause has previously been referred to the United States Magistrate Judge. The findings, conclusion, and recommendation of the Magistrate Judge, as evidenced by his signature thereto, are as follows:
Statement of the Case:
Petitioner is confined as an inmate of FCI Seagonville, Texas serving a felony drug conviction imposed by the United States District Court for the District of New Mexico on March 6, 1998. Respondent is the warden at FCI Seagonville.
Findings and Conclusions:
In his petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 Martinez challenges the Bureau of Prisons's interpretation of 18 U.S.C. § 3624(b) as implemented in 28 C.F.R. § 523.20.
As a preliminary matter, Respondent asserts that the petition should be dismissed because Martinez failed to exhaust his administrative remedies. A § 2241 petitioner is required to exhaust his administrative remedies before seeking a writ in federal court. Rourke v. Thompson, 11 F.3d 47, 49 (5th Cir. 1993), see also Fuller v. Rich, 11 F.3d 61 (5th Cir. 1994). In the instant case, Petitioner's available administrative remedies are set out in 28 C.F.R. § 542.10 et seq.
Martinez does not dispute his failure to pursue these remedies (See generally, Petitioner's Reply to Government's Response, 1-4). However, he contends that it is futile for him to pursue the administrative remedies and that doing so would create irreparable harm (Petitioner's Supplemental Memorandum of Law, i and v-vi). Exceptions to the exhaustion requirement exist when administrative remedies are unavailable, inappropriate for the relief sought, or where the attempt to exhaust the remedies would be futile. These exceptions apply only in extraordinary circumstances and a petitioner bears the burden to demonstrate that administrative review would be futile. Fuller v. Rich, 11 F.3d 61, 62 (5th Cir. 1994). Exhaustion of administrative remedies is not a jurisdictional requirement in the context of a 28 U.S.C. § 2241 unrelated to civil rights issues. See Id. Thus, where the court finds that Petitioner's continued pursuit of administrative remedies would be futile, it may excuse a Petitioner's failure to exhaust and reach the merits of the claim. See Id.; see also Tasby v. Pratt, 2002 WL 1160071 *2-3 (N.D.Tex. 2002).
Petitioner's claim of futility is meritorious since it is unlikely in the extreme that were he to pursue additional administrative remedies the Bureau of Prisons would grant relief in his individual case in contravention to its own published regulations. Moreover, since exhaustion of remedies in the context of this § 2241 petition is not a jurisdictional prerequisite, Martinez's petition should be decided on the merits.
§ 3624(b)(1) reads, in pertinent part,
Subject to paragraph (2), a prisoner who is serving a term of imprisonment of more than 1 year other than a term of imprisonment for the duration of the prisoner's life, may receive credit toward the service of the prisoner's sentence, beyond the time served, of up to 54 days at the end of each year of the prisoner's term of imprisonment, beginning at the end of the first year of the term, subject to determination by the Bureau of Prisons that, during that year, the prisoner has displayed exemplary compliance with institutional disciplinary regulations . . . Subject to paragraph (2), credit for the last year or portion of a year of the term of imprisonment shall be prorated and credited within the last six weeks of the sentence.
Petitioner takes exception to the methodology of calculation used by the Bureau of Prisons in the partial year served at the completion of the sentence. Currently, the bureau uses the amount of time actually served by the prisoner for the computation of the amount of good conduct time (Respondent's Motion, Appendix. A). Petitioner argues that the Bureau of Prisons should calculate the maximum amount of good conduct time using the time imposed at the time of sentencing.
Although the Fifth Circuit has not addressed the issue raised by Martinez, the Ninth Circuit addressed it in Pacheco-Camacho v. Hood, 272 F.3d 1266 (9th Cir. 2001). That court found that § 523.20 was entitled to deference under Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 104 S.Ct. 2778 (1984) and that the Bureau of Prisons's interpretation of § 3624(b) was reasonable. Pacheco-Camacho, 272 F.3d 1266. Notwithstanding this decision, Petitioner contends that the Ninth Circuit made several errors in its legal analysis.
First, he claims that the court applied the Chevron doctrine in error. He asserts that § 3624 is a penal statute and therefore, if ambiguous, falls under the rule of lenity (Petitioner's Memorandum Brief in Support of Motion for Correction of Movant's Good Conduct Time Pursuant to Title 28 U.S.C. § 2241, 12-15 "Petitioner's Memorandum Brief). The rule of lenity arises out of concern for individual rights and belief that defendants should be given fair warning as to what constitutes criminal conduct. United States v. Marek, 238 F.3d 310, 322 (5th Cir. 2001). It applies in the very narrow ambit of criminal statutes and the penalties imposed for criminal conduct. See Id.; see also United States v. John, 309 F.3d 298, 301 (5th Cir. 2002). Since § 3624(b) is not concerned with crimes and their punishment, nor does it trigger the correct concerns, it is not a penal statute for purposes of the rule of lenity. Therefore the Chevron doctrine applies, since § 3624 was adopted through the notice and comment procedure. See, e.g., United States v. Mead Co., 533 U.S.218, 227, 121 S.Ct. 2164, 2171(2001); see also Pacheco-Camacho, 272 F.3d at 1268, 1271.
Under the Chevron doctrine, a court must first determine if Congress has spoken on an issue in such a manner that their intent is clear. Chevron, 467 U.S. at 842, 104 S.Ct. at 2778. If the court decides in the negative, it must then determine if the agency's interpretation "is based on a permissible construction of the statute." Id. at 843, 104 S.Ct. at 2778.
Petitioner contends that the plain language of the statute supports his computational methodology (Petitioner's Memorandum Brief, 3-7). "Term of imprisonment," he says, is clearly different from "time served" (Petitioner's Memorandum Brief, 3). He cites United States v. Morales-Alejo, 193 F.3d 1102, 11 OS-06 (9th Cir. 1999) for the proposition that courts distinguish between "terms of imprisonment" and "detention" (Petitioner's Memorandum Brief, 5). However, the Ninth Circuit expressly rejected such a definitional usage of Morales-Alejo in Pacheco-Camacho, 272 F.3d at 1269. Petitioner also cites 18 U.S.C. § 4101(b) as "defining `imprisonment' as a `penalty imposed by the court under which the individual is confined to an institution'" and 18 U.S.C. § 3582 (Id). These statutes have little relevance because they have no relationship to the statute at issue. A plain reading of § 3624(b) does not make it clear what amount of time should be used as the standard of prorating. Pacheco-Camacho, 272 F.3d at 1269. Likewise the language of § 3624(b) is ambiguous as to legislative intent.
§ 3624, the statute in question, is in Chapter 229, subchapter C. § 4101 is the definitional section of Chapter 306. § 3582 is a statute within Chapter 227, subchapter D.
The second prong of the Chevron test requires the court to determine if the regulation is "based on a permissible construction of the statute." Pacheco-Camacho, 272 F.3d at 1270 (quoting Chevron, 467 U.S. at 843, 104 S.Ct at 2778). This first requires a determination of whether Congress has vested the agency with authority to "elucidate a specific provision of the statute by regulation." Pacheco-Camacho, 272 F.3d at 1270 (quoting Chevron, 467 U.S. at 843-44, 104 S.Ct at 2778). The statute does not explicitly vest the Bureau of Prisons with such authority, but the authority is implied by the authority to grant good time credits. Pacheco-Camacho, 272 F.3d at 1270. Also, the language of § 3624(b)(1) implicitly charges the Bureau of Prisons with the implementation of prorating. Thus, § 523.20 falls within the implied authority of the Bureau of Prisons and is entitled to judicial deference. Id.
A court "may reverse an agency's construction of an ambiguous or silent statute only if [it] find[s] it to be `arbitrary, capricious, or manifestly contrary to the statute.'" El Paso Elec. Co. v. F.E.R.C., 201 F.3d 667, 670 (5th Cir. 2000) (quoting Chevron, 467 U.S. at 844, 104 S.Ct. at 2778). "The court need not conclude that the agency construction was the only one it permissibly could have adopted to uphold the construction, or even the reading the court would have reached if the question initially had arisen in a judicial proceeding." Chevron, 467 U.S. at 843 n.l 1, 104 S.Ct. at 2782 n. 11. "Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute." Id. at 843, 104 S.Ct. at 2782. The court should give the Bureau of Prisons's interpretation great deference. See, e.g., Sanderson Farms, Inc. v. N.L.R.B., 335 F.3d 445, 452 n. 8 (5th Cir. 2003).
As related above, the meaning of the statutory language is ambiguous. The Bureau of Prisons's interpretation of the statute is reasonable and is not effected to subvert the will of Congress. See Pacheco-Camacho, 212 F.3d at 1270-71 ("This interpretation comports with the statutory language of section 3264(b), and does not subvert the statutory design. It establishes an effective and fair prorating scheme, enabling inmates to calculate with reasonable certainty the end of their imprisonment, while preventing certain prisoners from receiving disproportionate good time credits. . ."). Therefore, the court must uphold the Bureau of Prisons's interpretation. See, e.g., Chevron 467 U.S. at 844, 104 S.Ct. at 2782 ("Such legislative regulations are given controlling weight unless they are arbitrary, capricious, or manifestly contrary to the statute.") Recommendation:
For the forgoing reasons it is recommended that the § 2241 petition for habeas relief be DENIED.
A copy of this recommendation shall be transmitted to Petitioner and to counsel for Respondent.
Notice
In the event that you wish to object to this recommendation, you are hereby notified that you must file your written objections within ten days after being served with a copy of this recommendation. Pursuant to Douglass v. United Servs. Auto Ass'n, 79 F.3d 1415 (5th Cir. I996) (en banc), a party's failure to file written objections to these proposed findings of fact and conclusions of law within such ten day period may bar a de novo determination by the district judge of any finding of fact or conclusion of law and shall bar such party, except upon grounds of plain error, from attacking on appeal the unobjected to proposed findings of fact and conclusions of law accepted by the district court.