Under an earlier version of the pilot program—created by the Second Chance Act—we concluded that we had jurisdiction to consider § 2241 petitions challenging the BOP's statutory interpretation of 42 U.S.C. § 17541(g). Mathison v. Davis, 398 F. App'x 344, 345 (10th Cir. 2010) (unpublished) (explaining that the court had "jurisdiction under 28 U.S.C. §§ 1291 and 2253(a)"); Izzo v. Wiley, 620 F.3d 1257, 1258 (10th Cir. 2010) (same). For example, in Izzo, we concluded that we had jurisdiction to consider a seventy-year-old federal prisoner's challenge to the BOP's interpretation of the phrase "term of imprisonment."
Moreover, since prison code 205 does not define "sexual act," courts will consider the agency's informal interpretation and "defer to the [BOP's] view if it is 'well-reasoned and has power to persuade.'" See Mathison v. Davis, 398 Fed. Appx. 344, 346 (10th Cir. 2010) (citing Fristoe v. Thompson, 144 F.3d 627, 631 (10th Cir. 1998). The BOP's interpretation of "sexual act" as including masturbation is a reasonable interpretation of the regulation.
Furthermore, at least one circuit court has also held that for the purposes of calculating the inmate's eligibility under the 75% requirement, the BOP shall not factor in good conduct time credits. See Mathison v. Davis, 2010 WL 3965906 (10th Cir. Oct. 12, 2010) (slip copy). The Tenth Circuit in Mathison, analyzed the BOP's construction of the language "term of imprisonment" to determine if Petitioner's argument that "term of imprisonment" meant "net term after deducting good conduct credits" and held that:
At least one circuit court has also held that for the purposes of calculating the inmate's eligibility under the 75% requirement, the BOP shall not factor in good conduct time credits. See, e.g., Mathison v. Davis, 2010 U.S. App. LEXIS 21043 (10th Cir. Oct. 12, 2010). This issue is not presented here.