Opinion
CIV-05-1053-C.
September 20, 2005
REPORT AND RECOMMENDATION
Petitioner, a federal prisoner appearing pro se, has filed this Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241. In his Petition, Petitioner challenges the United States Bureau of Prisons' ("BOP") method of calculating the time credited toward service of his sentence for good conduct under 18 U.S.C. § 3624. The matter has been referred to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B). The Petition has been promptly examined.See Rule 4, Rules Governing Section 2254 Cases in the United States District Courts. For the following reasons, it is recommended that the Petition be summarily denied. 28 U.S.C. § 2243.
Rule 4 is applied in the discretion of the undersigned to this § 2241 habeas proceeding. Rule 1(b), Rules Governing Section 2254 Cases in the United States District Courts (granting district courts discretion to apply the Rules in other civil proceedings).
Pursuant to 28 U.S.C. § 2243, when presented with an application for a writ of habeas corpus under 28 U.S.C. § 2241, the court should grant the writ or order a response "unless it appears from the application that the applicant . . . is not entitled thereto."
I. Background
According to Petitioner's statements in his Petition, Petitioner is a federal prisoner who is currently confined in the Federal Correctional Institution in El Reno, Oklahoma. He is serving a 168-month term of imprisonment imposed on October 10, 1995, in the United States District Court for the Western District of Texas for his conviction for conspiracy to possess cocaine with the intent to distribute. Petition, at 1-2. Petitioner did not appeal this conviction, and Petitioner's subsequent motion to vacate the sentence filed pursuant to 28 U.S.C. § 2255 was denied as untimely.
II. Calculating Good Conduct Sentence Credits
Petitioner contends that the BOP's method of calculating the good conduct time credited toward service of his sentence is contrary to the unambiguous language of the statute, 18 U.S.C. § 3624, which governs the application of such credit to the sentences of federal prisoners. Section 3624(b) of Title 18 provides in relevant part:
[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. . . . . [C]redit 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.18 U.S.C. § 3624(b) (footnote omitted). The BOP interprets the statute as allowing 54 days of good conduct credits "for each year served." 28 C.F.R. § 523.20. Pursuant to the BOP's Program Statement § 5880.28, the BOP calculates Petitioner's good conduct credits in the following manner: At the end of each year of the full year of imprisonment, for good conduct during that year of incarceration, the BOP awards an eligible inmate 54 days of good conduct credit. After application of those good conduct credits, the inmate's final year will be less than 365 days, and, thus, good conduct credits will be prorated for the remaining portion of the last year.
Petitioner contends that under the unambiguous language of the statute theBOP must award up to fifty-four days of good conduct time for each year of the sentence imposed upon him. In other words, Petitioner contends that 18 U.S.C. § 3624 requires the BOP to calculate good conduct credits based on the sentence imposed, not the time served by the prisoner. However, Petitioner contends that the BOP has misconstrued the statute to allow it to prorate the fifty-four days of credit and award credit toward service of the prisoner's sentence based on the number of days actually served by an inmate with satisfactory behavior. Using the BOP's method of calculation of his sentence, Petitioner contends that he will earn only 658 days of good conduct credits as opposed to the 756 days of credit he projects he would earn under his construction of the statute.
Six circuit courts of appeals have considered the legal issue presented by Petitioner and have concluded that the statute's language is ambiguous and, giving the BOP the deference to which it is entitled in interpreting ambiguous federal statutes, the BOP's interpretation of the statute in its implementing regulation is reasonable. Brown v. McFadden, 416 F.3d 1271 (11th Cir. 2005); Yi v. Federal Bureau of Prisons, 412 F.3d 526 (4th Cir. 2005) (unpublished op.); O'Donald v. Johns, 402 F.3d 172 (3rd Cir.), cert. denied, ___ U.S. ___, 125 S.Ct. 2921 (2005); Perez-Olivo v. Chavez, 394 F.3d 45, 52 (1st Cir. 2005); White v. Scibana, 390 F.3d 997 (7th Cir. 2004);Pacheco-Camacho v. Hood, 272 F.3d 1266, 1270 (9th Cir. 2001). The Fifth Circuit Court of Appeals has considered the same issue and concluded that the statute's language is not ambiguous and that the statute "makes clear that good time credit must be earned by a prisoner on an annual basis; it is not awarded in advance." Sample v. Morrison, 406 F.3d 310, 312 (5th Cir. 2005). Alternatively, in Sample, the circuit court held that even if the statute is ambiguous, the BOP's interpretation is permissible. Id. at 313.
Petitioner's argument has been raised by numerous federal prisoners in this Court, and every Judge in this Court has adopted the prevailing view, rejecting the habeas claims of the prisoners that are substantially similar to the Petitioner's.Johnson v. Scibana, No. CIV-05-639-HE, Order and Judgment (W.D. Okla. July 22, 2005) (Heaton, D.J.); Vasquez v. Scibana, No. CIV-05-689-HE, Order and Judgment (W.D. Okla. July 22, 2005) (Heaton, D.J.); Holt v. Scibana, No. CIV-05-646-C, Order Adopting Report and Recommendation and Judgment (W.D. Okla. June 27, 2005) (Cauthron, C.J.); Torres v. Peterson, No. CIV-04-935-C, Order and Judgment (W.D. Okla. May 24, 2005) (Cauthron, C.J.); Secondi v. Peterson, No. CIV-04-1090-HE, Order and Judgment (W.D. Okla. Apr. 13, 2005) (Heaton, D.J.);Rippetoe v. Callahan, No. CIV-04-1020-C, Order and Judgment (W.D. Okla. Apr. 12, 2005) (Cauthron C.J.); Flores v. Callahan, No. CIV-04-1385-T, Order and Judgment (W.D. Okla. Apr. 7, 2005) (Thompson, D.J.); Evans v. Peterson, No. CIV-04-1160-W, Order and Judgment (W.D. Okla. Mar. 28, 2005) (West, D.J.); Cipriano v. Callahan, No. CIV-04-1699-W, Order and Judgment (W.D. Okla. Mar. 9, 2005) (West, D.J.); Meza v. Callahan, No. CIV-04-1656-F, Order and Judgment (W.D. Okla. Feb. 24, 2005) (Friot, D.J.); Winters v. Peterson, No. CIV-04-1158-F, Order and Judgment (W.D. Okla. Feb. 22, 2005) (Friot, D.J.); Mackey v. Callahan, No. CIV-04-1111-R, Order and Judgment (W.D. Okla. Jan. 26, 2005) (Russell, D.J.);Adame v. Callahan, No. CIV-04-1386-L, Order and Judgment (W.D. Okla. Jan. 20, 2005) (Leonard, D.J.); Ramos v. Callahan, No. CIV-04-1657-C, Order and Judgment (W.D. Okla. Jan. 11, 2005) (Cauthron, C.J.); Parker v. Peterson, No. CIV-04-882-C, Order and Judgment (W.D. Okla. Oct. 28, 2004) (Cauthron, C.J.).
The legal issue raised by Petitioner is well-settled in this Court, and his contentions that (1) the language of § 3624(b) is unambiguous and (2) the BOP's method of calculating his good conduct credits is contrary to the statute's requirement that his good conduct credits be calculated based on the sentence imposed upon him rather than on the actual time he serves in prison are meritless. Based upon the well-reasoned circuit court opinions inBrown, Yi, O'Donald, Perez-Olivo, White, andPacheco-Camacho, as well as the opinions issued by every district judge of this Court, the undersigned finds that § 3624(b)(1) is ambiguous, and that deference should therefore be accorded to the BOP's calculation method as set forth in its implementing regulations and policies. With respect to the issue of the reasonableness of the BOP's interpretation of the statute, the Third Circuit Court of Appeals persuasively stated inO'Donald that "BOP's interpretation comports with the language of the statute, effectuates the statutory design, established a `fair prorating scheme,' enables inmates to calculate the time they must serve with reasonable certainty, and prevents certain inmates from earning [good conduct time] for time during which they were not incarcerated."O'Donald, 402 F.3d at 174. Because the BOP's regulation requiring that good conduct credits be computed based on "time served" is a reasonable construction of § 3624(b)(1), Petitioner is not entitled to habeas relief.
In an alternative argument, Petitioner contends that if the language of § 3624(b) is found to be ambiguous, then the "rule of lenity" should apply. However, as the Eleventh Circuit Court of Appeals succinctly held in Brown with respect to this same alternative argument, "[t]he rule of lenity is inapplicable because of the BOP's reasonable interpretation of 18 U.S.C. § 3624(b)(1). . . ." Brown, 416 F.3d at 1273 (citations omitted). Accordingly, Petitioner's alternative argument in support of his Petition, which has been repeatedly rejected in this Court and in the majority of the circuit courts, is meritless as well. Applying Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), the BOP's interpretation of § 3624(b) is "based on a permissible construction of the statute" and therefore the agency's interpretation should be upheld and the Petition should be denied. Chevron, 467 U.S. at 843.
RECOMMENDATION
Based on the foregoing findings, it is recommended that the Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 be DENIED. Petitioner is advised of his right to file an objection to this Report and Recommendation with the Clerk of this Court by October 10th , 2005, in accordance with 28 U.S.C. § 636 and LCvR 72.1. The Petitioner is further advised that failure to make timely objection to this Report and Recommendation waives his right to appellate review of both factual and legal issues contained herein. Moore v. United States of America, 950 F.2d 656 (10th Cir. 1991).
This Report and Recommendation disposes of all issues referred to the undersigned Magistrate Judge in the captioned matter.
REPORT AND RECOMMENDATION
Petitioner, a federal prisoner appearing pro se, has filed this Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241. In his Petition, Petitioner challenges the United States Bureau of Prisons' ("BOP") method of calculating the time credited toward service of his sentence for good conduct under 18 U.S.C. § 3624. The matter has been referred to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B). The Petition has been promptly examined.See Rule 4, Rules Governing Section 2254 Cases in the United States District Courts. For the following reasons, it is recommended that the Petition be summarily denied. 28 U.S.C. § 2243.I. Background
According to Petitioner's statements in his Petition, Petitioner is a federal prisoner who is currently confined in the Federal Correctional Institution in El Reno, Oklahoma. He is serving a 168-month term of imprisonment imposed on October 10, 1995, in the United States District Court for the Western District of Texas for his conviction for conspiracy to possess cocaine with the intent to distribute. Petition, at 1-2. Petitioner did not appeal this conviction, and Petitioner's subsequent motion to vacate the sentence filed pursuant to 28 U.S.C. § 2255 was denied as untimely.
II. Calculating Good Conduct Sentence Credits
Petitioner contends that the BOP's method of calculating the good conduct time credited toward service of his sentence is contrary to the unambiguous language of the statute, 18 U.S.C. § 3624, which governs the application of such credit to the sentences of federal prisoners. Section 3624(b) of Title 18 provides in relevant part:
[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. . . . . [C]redit 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.18 U.S.C. § 3624(b) (footnote omitted). The BOP interprets the statute as allowing 54 days of good conduct credits "for each year served." 28 C.F.R. § 523.20. Pursuant to the BOP's Program Statement § 5880.28, the BOP calculates Petitioner's good conduct credits in the following manner: At the end of each year of the full year of imprisonment, for good conduct during that year of incarceration, the BOP awards an eligible inmate 54 days of good conduct credit. After application of those good conduct credits, the inmate's final year will be less than 365 days, and, thus, good conduct credits will be prorated for the remaining portion of the last year.
Petitioner contends that under the unambiguous language of the statute theBOP must award up to fifty-four days of good conduct time for each year of the sentence imposed upon him. In other words, Petitioner contends that 18 U.S.C. § 3624 requires the BOP to calculate good conduct credits based on the sentence imposed, not the time served by the prisoner. However, Petitioner contends that the BOP has misconstrued the statute to allow it to prorate the fifty-four days of credit and award credit toward service of the prisoner's sentence based on the number of days actually served by an inmate with satisfactory behavior. Using the BOP's method of calculation of his sentence, Petitioner contends that he will earn only 658 days of good conduct credits as opposed to the 756 days of credit he projects he would earn under his construction of the statute.
Six circuit courts of appeals have considered the legal issue presented by Petitioner and have concluded that the statute's language is ambiguous and, giving the BOP the deference to which it is entitled in interpreting ambiguous federal statutes, the BOP's interpretation of the statute in its implementing regulation is reasonable. Brown v. McFadden, 416 F.3d 1271 (11th Cir. 2005); Yi v. Federal Bureau of Prisons, 412 F.3d 526 (4th Cir. 2005) (unpublished op.); O'Donald v. Johns, 402 F.3d 172 (3rd Cir.), cert. denied, ___ U.S. ___, 125 S.Ct. 2921 (2005); Perez-Olivo v. Chavez, 394 F.3d 45, 52 (1st Cir. 2005); White v. Scibana, 390 F.3d 997 (7th Cir. 2004);Pacheco-Camacho v. Hood, 272 F.3d 1266, 1270 (9th Cir. 2001). The Fifth Circuit Court of Appeals has considered the same issue and concluded that the statute's language is not ambiguous and that the statute "makes clear that good time credit must be earned by a prisoner on an annual basis; it is not awarded in advance." Sample v. Morrison, 406 F.3d 310, 312 (5th Cir. 2005). Alternatively, in Sample, the circuit court held that even if the statute is ambiguous, the BOP's interpretation is permissible. Id. at 313.
Petitioner's argument has been raised by numerous federal prisoners in this Court, and every Judge in this Court has adopted the prevailing view, rejecting the habeas claims of the prisoners that are substantially similar to the Petitioner's.Johnson v. Scibana, No. CIV-05-639-HE, Order and Judgment (W.D. Okla. July 22, 2005) (Heaton, D.J.); Vasquez v. Scibana, No. CIV-05-689-HE, Order and Judgment (W.D. Okla. July 22, 2005) (Heaton, D.J.); Holt v. Scibana, No. CIV-05-646-C, Order Adopting Report and Recommendation and Judgment (W.D. Okla. June 27, 2005) (Cauthron, C.J.); Torres v. Peterson, No. CIV-04-935-C, Order and Judgment (W.D. Okla. May 24, 2005) (Cauthron, C.J.); Secondi v. Peterson, No. CIV-04-1090-HE, Order and Judgment (W.D. Okla. Apr. 13, 2005) (Heaton, D.J.);Rippetoe v. Callahan, No. CIV-04-1020-C, Order and Judgment (W.D. Okla. Apr. 12, 2005) (Cauthron C.J.); Flores v. Callahan, No. CIV-04-1385-T, Order and Judgment (W.D. Okla. Apr. 7, 2005) (Thompson, D.J.); Evans v. Peterson, No. CIV-04-1160-W, Order and Judgment (W.D. Okla. Mar. 28, 2005) (West, D.J.); Cipriano v. Callahan, No. CIV-04-1699-W, Order and Judgment (W.D. Okla. Mar. 9, 2005) (West, D.J.); Meza v. Callahan, No. CIV-04-1656-F, Order and Judgment (W.D. Okla. Feb. 24, 2005) (Friot, D.J.); Winters v. Peterson, No. CIV-04-1158-F, Order and Judgment (W.D. Okla. Feb. 22, 2005) (Friot, D.J.); Mackey v. Callahan, No. CIV-04-1111-R, Order and Judgment (W.D. Okla. Jan. 26, 2005) (Russell, D.J.);Adame v. Callahan, No. CIV-04-1386-L, Order and Judgment (W.D. Okla. Jan. 20, 2005) (Leonard, D.J.); Ramos v. Callahan, No. CIV-04-1657-C, Order and Judgment (W.D. Okla. Jan. 11, 2005) (Cauthron, C.J.); Parker v. Peterson, No. CIV-04-882-C, Order and Judgment (W.D. Okla. Oct. 28, 2004) (Cauthron, C.J.).
The legal issue raised by Petitioner is well-settled in this Court, and his contentions that (1) the language of § 3624(b) is unambiguous and (2) the BOP's method of calculating his good conduct credits is contrary to the statute's requirement that his good conduct credits be calculated based on the sentence imposed upon him rather than on the actual time he serves in prison are meritless. Based upon the well-reasoned circuit court opinions inBrown, Yi, O'Donald, Perez-Olivo, White, andPacheco-Camacho, as well as the opinions issued by every district judge of this Court, the undersigned finds that § 3624(b)(1) is ambiguous, and that deference should therefore be accorded to the BOP's calculation method as set forth in its implementing regulations and policies. With respect to the issue of the reasonableness of the BOP's interpretation of the statute, the Third Circuit Court of Appeals persuasively stated inO'Donald that "BOP's interpretation comports with the language of the statute, effectuates the statutory design, established a `fair prorating scheme,' enables inmates to calculate the time they must serve with reasonable certainty, and prevents certain inmates from earning [good conduct time] for time during which they were not incarcerated."O'Donald, 402 F.3d at 174. Because the BOP's regulation requiring that good conduct credits be computed based on "time served" is a reasonable construction of § 3624(b)(1), Petitioner is not entitled to habeas relief.
In an alternative argument, Petitioner contends that if the language of § 3624(b) is found to be ambiguous, then the "rule of lenity" should apply. However, as the Eleventh Circuit Court of Appeals succinctly held in Brown with respect to this same alternative argument, "[t]he rule of lenity is inapplicable because of the BOP's reasonable interpretation of 18 U.S.C. § 3624(b)(1). . . ." Brown, 416 F.3d at 1273 (citations omitted). Accordingly, Petitioner's alternative argument in support of his Petition, which has been repeatedly rejected in this Court and in the majority of the circuit courts, is meritless as well. Applying Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), the BOP's interpretation of § 3624(b) is "based on a permissible construction of the statute" and therefore the agency's interpretation should be upheld and the Petition should be denied. Chevron, 467 U.S. at 843.
RECOMMENDATION
Based on the foregoing findings, it is recommended that the Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 be DENIED. Petitioner is advised of his right to file an objection to this Report and Recommendation with the Clerk of this Court by October 10th , 2005, in accordance with 28 U.S.C. § 636 and LCvR 72.1. The Petitioner is further advised that failure to make timely objection to this Report and Recommendation waives his right to appellate review of both factual and legal issues contained herein. Moore v. United States of America, 950 F.2d 656 (10th Cir. 1991).
This Report and Recommendation disposes of all issues referred to the undersigned Magistrate Judge in the captioned matter.