Opinion
Case No. 5:03-CV-203-OC-10GRJ.
November 30, 2004
REPORT AND RECOMMENDATION
Specific written objections may be filed in accordance with 28 U.S.C. § 636, and Rule 6.02, Local Rules, M.D. Fla., within ten (10) days after service of this Report and Recommendation. Failure to file timely objections shall bar the party from a de novo determination by a district judge and from attacking factual findings on appeal.
Pending before the Court are the Petition For A Writ of Habeas Corpus (Doc. 1), filed by the Petitioner pro se, and Petitioner's Supplemental Memorandum In Support of § 2241 Petition (Doc. 25), filed by Petitioner's subsequently retained counsel. The Respondent has filed a Response To Petition For Writ of Habeas Corpus (Doc. 17) and a Response To Petitioner's Supplemental Memorandum In Support of § 2241 Petition (Doc. 26) and, accordingly, the matter is ripe for review. For the reasons that follow the Court determines that Petitioner's Petition For A Writ of Habeas Corpus is due to be DENIED.
I. INTRODUCTION AND BACKGROUND
The Petitioner is a federal prisoner presently assigned to the Federal Correctional Complex in Coleman, Florida. ("FCI Coleman".) Petitioner filed this § 2241 Petition, pro se, naming as respondents the Bureau of Prisons ("BOP") and Kathleen Hawk Sawyer, who was the former director of the BOP. The current warden of FCI Coleman is Bruce Pearson, who is the proper respondent. Pursuant to F.R.Civ.P. 25(d) Bruce Pearson is hereby substituted as the proper party.Petitioner alleges that the BOP has misinterpreted the good conduct time statute, 18 U.S.C. § 3624(b), thus depriving Petitioner of the fifty-four (54) days of credit per year Petitioner contends he is entitled to receive. According to Petitioner, he should be awarded fifty-four (54) days of good conduct time per year based on the length of the sentence imposed, rather than upon the completion of one year of good conduct while incarcerated, which is the method of calculation utilized by the BOP.
Petitioner has exhausted his administrative remedies on the issues raised in his petition. See, Doc. 26, Ex. "B."
Petitioner was sentenced on June 10, 1992, by the United States District Court, Eastern District of Pennsylvania, to a fifteen (15) year term of imprisonment followed by a two year term of supervised release. Petitioner's federal sentence was computed as commencing on June 29, 1992, the date Petitioner was incarcerated. The BOP has awarded Petitioner 594 days of good conduct time custody credits (at the time of the Petition), which represents awards of fifty-four (54) days for each year Petitioner demonstrated good conduct while incarcerated. The awards of good conduct time credit were made by the BOP within fifteen (15) days after the end of the first year of incarceration between July 12, 1993, through July 12, 2003. Petitioner currently has a projected release date of July 22, 2005, via good conduct time, utilizing the method employed by the BOP. Utilizing Petitioner's method of calculating the good conduct time credit, Petitioner's release date would be April 8, 2005.
Doc. 17, Decl. Of Meg Traynor, ¶¶ 5-6.
Id.
Id.
Id.
II. DISCUSSION
A. The Parties' Different Methods For Calculating the Good Conduct Time Credit 1. BOP's Calculations
The BOP interprets 18 U.S.C. § 3624(b) to require that good conduct time is awarded on the basis of time actually served by the defendant rather than on the basis of the sentence imposed. Therefore, under the BOP's interpretation of § 3624, a prisoner is not entitled to receive good conduct time for any time that the prisoner would not actually serve.
The BOP makes two calculations in order to award good conduct time under 18 U.S.C. § 3624(b). First, the BOP determines the date the prisoner began earning good time credit. This date is normally the date that the prisoner was first imprisoned. In this case, the BOP determined that the relevant date was June 28, 1992, the day before Petitioner began his federal prison sentence. The BOP then awards the good conduct time credit within fifteen (15) days after the end of each year of the sentence. Here, the BOP awarded Petitioner fifty-four (54) days of good conduct time credit after June 27, 1993, which was the end of the first year of Petitioner's first year of incarceration. At the end of each year of Petitioner's sentence for each year after June 27, 1993, the Petitioner was awarded fifty-four days of credit for a total of 594 days of good time credit.
The statute provides in relevant part that "A prisoner . . . shall receive credit toward service of his sentence . . . of fifty-four days at the end of each year of his term of imprisonment, beginning at the end of the first year of the term . . . and credit that has not been earned may not later be granted."
The BOP appropriately gave Petitioner one day of jail credit for the day of his arrest on December 5, 1991. By awarding jail credit this ensures that defendants who spend time in custody before serving their sentence are eligible to earn credit toward service of their sentences for compliance with the rules of the institution where they are held.
Petitioner was awarded fifty-four days of credit on July 12, 1993, July 12, 1994, July 12, 1995, July 12, 1996, July 12, 1997, July 12, 1998, July 12, 1999, July 12, 2000, July 12, 2001, July 12, 2002, and July 12, 2003. See Doc. 26, Ex. "C." The Petitioner also would be entitled to fifty-four days of credit within 15 days after June 26, 2004 but the calculation is not included on the BOP's exhibits.
The second calculation made by the BOP involves the proration of credit for the last year or portion of a year to be served. This is required by the statute, which provides in relevant part that "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." Assuming the Petitioner earns good conduct credit toward his sentence for the period of time ending on June 28, 2005, the Petitioner would have earned enough credits to satisfy all but twenty-five (25) days of the sentence imposed. This calculation is made by prorating the good time credits the Petitioner would be entitled to for the remaining days of his sentence. This proration is made by calculating the good time credits on a per diem basis so that the Petitioner receives the prorated benefit of the good conduct time credit for the last year of his sentence (i.e. commencing on June 28, 2005). The per diem credit is derived by dividing the number of days in a year (365) by the statutorily mandated credit of 54 days, which results in a good time credit of .148 for each day of the last year of the sentence. Because the Petitioner would have 28 days of his sentence remaining in the last year, the petitioner would be entitled to a maximum of three (3) days of good conduct time credit for the last year. Therefore, the Defendant will only have to serve twenty-five (25) days of the last year of his sentence, thus, making the Petitioner's projected release date July 22, 2005.
2. Petitioner's Calculations
Under the method of calculating the good time credit proposed by Petitioner, the Petitioner would receive good conduct credit for time for which he was not actually incarcerated. Petitioner's calculations are rather simple. Starting at the beginning of the Petitioner' sentence — and before the Petitioner has served even one day of his sentence — Petitioner multiples the number of years of the sentence by 54 days and then subtracts the total number of days from the total number of days of the sentence. The difference is the number of days the Petitioner would have to serve.
Here, the Petitioner was sentenced to 15 years of imprisonment. Thus, under Petitioner's calculations he is entitled to 15 times 54 days of credit for a total of 810 days of good conduct time credit. This calculation ignores the fact that the Petitioner will not have served 15 years under either theory, although under Petitioner's method he would actually receive good conduct credit for periods of time when he was not actually incarcerated. Further, because the statute requires the BOP to award the good time credit "within fifteen (15) days after each year" the BOP would be required to construe a year as 311 days thus resulting in an award of sixty-three (63) days of good conduct time for each full year "during" which the Petitioner displayed good conduct. In any event, utilizing the Petitioner's 810 days of good conduct time calculated on the total number of years of his sentence, Petitioner would have a release date of April 8, 2005, which is 105 days less than the BOP's formula.
B. Guidelines For Review of the BOP's Construction Of A Statute
The BOP's regulation implementing the award of good conduct time pursuant to 18 U.S.C. § 3624(b) is codified at 28 C.F.R. § 523.20. This regulation specifies that pursuant to 18 U.S.C. § 3624(b), "an inmate earns 54 days credit toward service of a sentence (good conduct time credit) for each year served. This amount is prorated when the time served by the inmate for the sentence during the year is less than a full year." In addition, the BOP has promulgated Program Statement 5580.28, which provides that the fifty-four (54) day good conduct time credit should be awarded "at the end of" each year of imprisonment, provided the prisoner earns the credit through satisfactorily complying with institutional disciplinary regulations.
Sentence Computation Manual (CCCA of 1984), see Doc. 26, Revised Ex. D.
Where, as here, the Court must review an agency's interpretation of a federal statute, the threshold question is whether the agency's interpretation is entitled to deference and, if so, what deference should be afforded the agency's interpretation. The Supreme Court in Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc spelled out the analysis the Court must apply. Under Chevron, the Court must first examine the statute itself to determine whether "Congress has directly spoken to the precise question at issue," in such a way that "the intent of Congress is clear." Secondly, if the statute is silent or ambiguous the Court must then decide whether the agency's interpretation "is based on a permissible construction of the statute."
467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984).
Id. 467 U.S. at 842.
Id. at 843.
C. The Phrase "Term of Imprisonment" Is Ambiguous
Petitioner argues that the phrase "term of imprisonment" in § 3624(b) plainly means the period of incarceration to which a court sentences a prisoner and, therefore is not ambiguous. According to Petitioner, the use of the words "term of imprisonment" demonstrates Congress' intent for prisoners to receive up to 54 days of credit for each year of the sentence actually imposed upon them.
Petitioner first argues in support of his position that the phrase "term of imprisonment" is unambiguous, that the phrase "term of imprisonment" is used dozens of times in Title 18 and throughout the Comprehensive Crime Control Act of 1984 — of which the good time credit statute is a part — always to refer to the sentence imposed rather than the actual time in custody. Further, Petitioner argues that the phrase "term of imprisonment" is utilized in the statutes authorizing the United States Sentencing Commission and the federal sentencing guidelines themselves to mean the sentence imposed by the judge.
See, e.g. 18 U.S.C. § 924(c)(1)(D)(ii) ("the term of imprisonment imposed under this paragraph shall not run concurrently with any other term of imprisonment imposed under any other provision of law . . ."); 18 U.S.C. § 3142 (creating statutory presumption regarding pretrial release "if the judicial officer finds that there is probable cause to believe that the person committed an offense for which a maximum term of imprisonment of ten years or more is prescribed in the Controlled Substances Act . . ."); 18 U.S.C. § 3156(a)(3); See Doc. 25, Appendix 1 for a complete list of those sections in Title 18 where the phrase term of imprisonment is utilized.
See, e.g. 28 U.S.C. § 994.
See, e.g. U.S.S.G. § 5C1.1.
Second, Petitioner argues that the phrase "term of imprisonment" is used in three different sections of § 3624 to refer to the sentence imposed by the Court and therefore under the rule of "intra-statutory" consistency the phrase should be interpreted to have the same meaning.
In subsection (a) the statute says, "A prisoner shall be released by the Bureau of Prisons on the date of the expiration of the prisoner's term of imprisonment . . ."; in subsection (b), the statute says, "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 . . ."; in subsection (c), the statute says, "[t]he Bureau of Prisons shall, to the extent practicable, assure that a prisoner serving a term of imprisonment spends a reasonable part [under conditions that will allow him to adjust and prepare for re-entry into the community]." 18 U.S.C. § 3624.
See, Furnes v. Reeves, 362 F.3d 702, 713 (11th Cir. 2004) (it is "a fundamental rule of statutory interpretation that, within an act, the same words have the same meanings and different words have different meanings.")
There are two problems with Petitioner's argument. First, the phrase "term of imprisonment" is not used consistently throughout § 3624 to mean "sentence imposed." For example, subsection (d) requires the Bureau of Prisons to provide prisoners with clothing, funds, and transportation when the prisoners are released "on the expiration of the prisoner's term of imprisonment." In this context the phrase "term of imprisonment" obviously refers to the expiration of the actual time served in order for this provision to make sense.
Secondly, every court — save one — that has considered the same argument has concluded that the phrase "term of imprisonment" as used in § 3624 is ambiguous thus requiring under Chevron that the court consider whether the Bureau of Prison's interpretation of § 3624 is "based on a permissible construction of the statute."
See, Pacheco-Camacho v. Hood, 272 F.3d 1266, 1268 (9th Cir. 2001), cert denied, 535 U.S. 1105 (2002); Loeffler v. Bureau of Prisons, 2004 WL 2417805 (S.D.N.Y. Oct. 29, 2004);Graves v. Bledsoe, 2004 WL 1941231 (W.D. Va. Aug. 19, 2004);Pascuiti v. Drew, 2004 WL 1247813 (N.D.N.Y. June 2, 2004).
White v. Scibana, 321 F.Supp.2d 1037 (W.D. Wis. 2004). However, the White decision is presently on appeal to the Seventh Circuit and as a result the district judge in White (J. Crabbe) has issued a series of orders in similar cases staying the effect of her decision in White pending a ruling by the Seventh Circuit. See, e.g. Simms v. Scibana, 2004 WL 2535434 (W.D.Wis. Nov. 8, 2004).
This Court agrees that the meaning of the phrase "term of imprisonment" cannot be determined based on consistent usage throughout the statute and, therefore, the phrase is inherently ambiguous. Accordingly, in determining whether to accord deference to the interpretation used by the Bureau of Prisons, the Court must determine whether calculating good conduct time based on the prisoner's actual time served is a permissible construction of § 3624.
Petitioner also argues in the alternative that if the Court finds the statute to be ambiguous, the Court must resort to legislative history. Petitioner relies upon: (1) comments made by Senator Biden in the Congressional Record, 141 Cong. Rec. S2348-01 at S2349 (Feb. 9, 1995) and 140 Cong. Rec. S12314-01 at S12350 (Aug. 23, 1994); and (2) statements in the Senate Report for the Comprehensive Crime Control Act of 1984 suggesting that section 3264(b) was created so that "[c]omputation of credit toward early release pursuant to section 3264(b) will be considerably less complicated than under current law", S.Rep. 98-225, reprinted in 1984 U.S.C.C.A.N. 3182, 3339-3340. The Court, however, finds neither of these arguments as instructive as to the interpretation of the statute. Senator Bidens's remarks, relied upon by Petitioner, were made more than ten years after the statute was enacted and, therefore, are of marginal assistance in determining the meaning of the statute. See, Sullivan v. Finkelstein, 496 U.S. 617, 628 n. 8 (1990) (noting "difficulties inherent in relying on subsequent legislative history.") Similarly, the Senate's concern with reducing uncertainty in sentences by making the calculations more simple adds little to the question of whether the credits should be calculated on the basis of time served or the sentence imposed. Simply put there is little in the legislative history of the statute that aids the Court in determining the meaning of the phrase "term of imprisonment." The Court, therefore, declines to parse through isolated and out of context references to legislative history to divine the meaning of the phrase "term of imprisonment."
D. The Bureau of Prison's Interpretation of § 3624 Is Reasonable And Therefore Is Entitled To Deference
The Bureau of Prison's interpretation of the good conduct time credit is contained in both its internal Program Statement and also in its regulations. While the statute itself does not grant the Bureau of Prisons with the express authority to determine the basis for the method of calculating good conduct time, there is no question that the Bureau of Prisons — and not the courts — are delegated the authority for computing a prisoner's sentence, and administering good conduct time under § 3624.
28 C.F.R. § 523.20.
See, Gonzalez v. United States, 959 F.2d 211, 212 (11th Cir. 1992).
In determining whether the agency's interpretation of a statute is reasonable, the Court does not "need [to] 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. 11.
The Bureau of Prison's interpretation of § 3624(b) requiring the good conduct time credit to be calculated on actual time served as opposed to the sentence imposed is not only reasonable but the most logical interpretation of the statute. This conclusion is consistent with the implementing language of the statute, which provides that the award of the fifty-four (54) days of good conduct credit is to made only "at the end of each year." Thus, the Bureau of Prisons may only award these credits after the prisoner has complied with institutional disciplinary regulations. Under Petitioner's view, a prisoner would be entitled to good conduct time credit before the time is served, which is at odds with the concept that the good conduct time credit is earned by compliance with disciplinary rules. Indeed, utilizing Petitioner's interpretation of the good conduct time statute, a prisoner would receive a bonus or windfall in his last year of imprisonment because in order to make the award "within fifteen days after each year," as required by the statute, the Bureau of Prisons would have to construe a year as 311 days, thus resulting in a prisoner receiving credit before the prisoner has actually complied with applicable disciplinary rules. This construction is contrary to the concept of receiving credit for good conduct and not in accord with the practical and rather obvious purpose of the good conduct statute.
Sentencing Reform Act of 1984, Pub.L. 98-473, Title II, Sec. 212(a)(2)(1984); as amended by Criminal Law and Procedure Technical Amendments Act of 1986, Pub.L. 98-646, § 16, 100 Stat. 3592, §§ 16-17.
The Bureau of Prison's interpretation of the method of calculating the good conduct time reasonably interprets the statute and results in inmates receiving their full 54 days of good conduct credit at the end of the year rather than receiving credit before the time is served. Consistent with the conclusion of every court that has considered the issue, other than White, this Court concludes that the Court must defer to the reasonable interpretation of the good conduct statute adopted by the Bureau of Prisons.
Pacheco-Camacho, 272 F.3d 1266; Brown v. Hemingway, 2002 WL 31845147 (6th Cir. Dec. 16, 2002) (unpublished);Williams v. Lamanna, 2001 WL 1136069 (6th Cir. Sept. 19, 2001) (unpublished); Moore v. Bureau of Prisons, 2004 WL 2609589 (S.D.N.Y. Nov. 17, 2004); Harvey v. Joslin, 2004 WL 2645550 (N.D. Tex. Nov. 18, 2004); Young v. Ashcroft, 2004 WL 2624724 (D. Or. Nov. 16, 2004); Loeffler v. Bureau of Prisons, 2004 WL 2417805 (S.D.N.Y. Oct. 29, 2004); Graves v. Bledsoe, 334 F.Supp.2d 906 (W.D. Va. 2004); Pasciuti v. Drew, 2004 WL 1247813 (N.D.N.Y. June 2, 2004); Martinez v. Wendt, 2003 WL 22456808 (N.D.Tex. Oct. 24, 2003).
E. Rule of Lenity Does Not Apply
Lastly, Petitioner argues that the rule of lenity dictates that any statutory ambiguity must be resolved in his favor. The rule of lenity is applicable when construing an ambiguous penal statute. The purpose of the rule is to ensure "that the penal laws will be sufficiently clear, so that individuals do not accidentally run afoul of them and courts do not impose prohibitions greater than the legislature intended." The rule of lenity does not, however, prevent an agency — such as the BOP — from resolving statutory ambiguity through a valid regulation. The Bureau of Prisons has promulgated a reasonable interpretation of the good conduct time statute in its regulations and in the Program Statement and, thus, there is sufficient warning so that inmates do not make any mistakes concerning how they will be credited with good conduct time. Accordingly, the rule of lenity is not applicable to the Court's task of interpreting the good conduct statute.
Pacheco-Camacho, at 1271 (citing United States v. Bass, 404 U.S. 336, 347-48 (1971)).
Id. at 1271-72.
III. RECOMMENDATION
For the reasons discussed above, it is respectfully RECOMMENDED that the Petition For Writ of Habeas Corpus should be DENIED.