Opinion
04-C-784-C.
October 25, 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. Oral argument was heard on September 9, 2004, and a final decision is expected before the end of this year.
Petitioner Richard D. Moore, Jr. is an inmate at the Federal Correctional Institution in Oxford, Wisconsin. His petition 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. However, I note that petitioner does not verify, certify or declare under penalty of perjury that the factual assertions made in his petition are true and correct as 28 U.S.C. § 2242 requires. Therefore, petitioner must cure this defect in his pleading before I can make any final ruling in this action.
In the time that has passed since 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.
In this case, it appears from the documentation attached to petitioner's petition that neither his release nor pre-release date is imminent and that a stay of the proceedings is warranted. The Bureau of Prisons' sentence monitoring computation sheets attached to petitioner's petition shows that petitioner was sentenced on June 15, 1996, to a 132-month term of imprisonment. The Bureau of Prisons has projected his good conduct time to be 517 days, his release date to be July 30, 2005 and his pre-release date to be January 30, 2005. If the Bureau recalculates petitioner's release date in accordance with White, petitioner will be entitled to release approximately 77 days earlier, and his pre-release date may be similarly advanced. I conclude that petitioner will be irreparably harmed if he is forced to wait until the court of appeals decides White 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 and because the Bureau of Prisons has predetermined the issue. Gonzalez v. O'Connell, 355 F.3d 1010, 1016 (7th Cir. 2004) (court may waive exhaustion requirements for § 2241 to prevent prejudice caused by unreasonable delay or when agency has predetermined issue). 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, a verified copy of petitioner's petition 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. Pursuant to Fed.R.Civ.P. 4(l), petitioner is requested to submit proof to the court that he served his petition by certified mail. A copy of the postmarked certified mail receipt for each of the individuals to whom the petition was sent will constitute proof of service.
Petitioner has attached a certificate of service to his petition in which he certifies that he mailed a copy of his petition to respondent Scibana and the United States Attorney for the Western District of Wisconsin. This mailing is insufficient to satisfy the service requirements of Rule 4 because it was not made by certified mail.
ORDER
IT IS ORDERED that petitioner may have until November 5, 2004, in which to submit a copy of his habeas corpus petition that has been verified to be true under penalty of perjury, together with proof of service of his verified petition on the respondent, United States Attorney for the Western District of Wisconsin and Attorney General in Washington, D.C.Further, IT IS ORDERED that respondent may have until November 5, 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.