Opinion
CV. 04-1449-KI.
November 16, 2004
OPINION AND ORDER
Petitioner, an inmate at FCI Sheridan, brings this habeas corpus proceeding pursuant to 28 U.S.C. § 2241. For the reasons set forth below, petitioner's habeas petition (#1) is denied and this proceeding is dismissed.
DISCUSSION
On October 28, 1999, petitioner was sentenced to a 100-month term of imprisonment. The Federal Bureau of Prisons (BOP) subsequently advised petitioner that he is eligible to earn 392 days of good time credit toward completion of his sentence. Petitioner contends that pursuant to 18 U.S.C. § 3624(b) he is entitled to 442 days good time credits, less any good time taken for disciplinary infractions. As discussed below, the difference between petitioner's and the BOP's calculations arises from their differing interpretations of 18 U.S.C. § 3624(b).
Pursuant to 18 U.S.C. § 3624(a), a prisoner shall be released by the BOP "on the date of the expiration of the prisoner's term of imprisonment, less any time credited toward the service of the prisoner's sentence" as provided in § 3624(b). (Emphasis added.) Section 3624(b)(1), in turn, provides the manner in which good time credits are to be calculated:
(1) * * * [A] prisoner who is serving a term of imprisonment of more than 1 year * * *, 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.
(Emphasis added.)
The BOP has promulgated 28 C.F.R. § 523.20 interpreting § 3624(b) to mean that "an inmate earns 54 days credit toward service of sentence (good 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." (Emphasis added). In other words, good time credits are awarded based upon the time actually served, rather than the length of the sentence imposed. Hence, good time credits are retrospective, accruing only as time is actually served.
In Pacheco-Camacho v. Hood, 272 F.3d 1266, 1270-71 (9th Cir. 2001), cert. denied, 535 U.S. 1105 (2002), the Ninth Circuit concluded that § 3624(b)(1) is ambiguous, and that the BOP's interpretation of the statute is reasonable and entitled to deference. Most district courts to address the issue agree with the reasoning in Pacheco-Camacho. See Sash v. Zenk, 2004 WL 2549724, *6 (E.D.N.Y. Nov. 9, 2004); Loeffler v. Bureau of Prisons, 2004 WL 2417805, *5-*6 (S.D.N.Y. Oct. 29, 2004);Graves v. Bledsoe, 334 F.Supp.2d 906, 908 (W.D.Va. 2004);Pasciuti v. Drew, 2004 WL 1247813, *4-*6 (N.D.N.Y. June 2, 2004); Martinez v. Wendt, 2003 WL 22456808 *3 (N.D.Tex. Oct. 24, 2003) (findings and recommendation adopted by the district court, 2003 WL 22724755 (N.D.Tex. 2003)); Mujahid v. Daniels, Civ. No. 02-1719-ST (D.Or. Aug. 22, 2003) (findings and recommendation adopted by the district court, appeal pending);Montgomery v. Hood, 00-1350-HU (D.Or. Nov. 2000).
In White v. Scibana, 314 F.Supp. 2d 834, 840 (W.D.Wis. 2004), however, the Honorable Barbara B. Crabb "respectfully disagreed." Judge Crabb concluded that § 3624(b) is unambiguous and that under the statute the BOP "must calculate an inmate's good conduct time on the basis of his sentence rather than on the time he has served." White, 314 F.Supp.2d at 836.
Petitioner argues that this court should adopt the reasoning inWhite. Alternatively, petitioner argues that, if the statute is ambiguous as the Ninth Circuit has held, "the rule of lenity must prevail." Finally, petitioner argues that to adopt the Ninth Circuit's interpretation, in the face of Judge Crabb's more favorable reading, would be a violation of his right to equal protection will be violated.
This court is bound by the Ninth Circuit's conclusion that § 3624(b) is ambiguous, and that the BOP's interpretation of the statute is reasonable. Hasbrouck v. Texaco, Inc., 663 F.2d 930, (9th Cir. 1981), cert. denied, 459 U.S. 828 (1982) (district courts are bound by the law of their own circuit and are not to resolve splits between circuits no matter how egregiously in error they may feel their own circuit to be). In light of this precedent, I conclude that the BOP's calculation of petitioner's good time credits, based upon actual time served, is not in error.
Further, I reject petitioner's contention that the "rule of lenity" dictates a contrary conclusion. "The rule of lenity . . . does not prevent an agency from resolving statutory ambiguity through a valid regulation." Pacheco-Camacho, 272 F.3d at 1271. Hence, the rule of lenity does not apply. Id. at 1272; Sash, 2004 WL 2549724 *5-*6; see also Pasciuti, 2004 WL 1247813 *6 (rule of lenity does not apply because § 3624 is not ambiguous when considered in its entirety); Martinez, 2003 WL 22456808 (rule of lenity does not apply because § 3624 is not concerned with crimes and their punishment).
"The `rule of lenity' ensures 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." Pacheco-Camacho, 272 F.3d at 1271.
Finally, I reject petitioner's assertion that we must follow Judge Crabb's decision in White so as not to violate petitioner's right to equal protection. An equal protection claim requires proof of discriminatory intent. Lee v. City of Los Angeles, 250 F.3d 668, 686 (9th Cir. 2001). Here, any differing treatment arises from opposing legal decisions that this court lacks jurisdiction to resolve.
It is worthy of note that Judge Crabb has stayed all § 2241 proceedings filed in her district raising this issue, pending review by the Seventh Circuit of her decision in White, if recalculation of good time credits under White would result in the petitioner's imminent release. See e.g. Simms v. Scibana, 2004 WL 2535434 *1 (W.D.Wis. Nov. 8, 2004).
CONCLUSION
Based on the foregoing, petitioner's habeas corpus petition (#1) is DENIED and this proceeding is DISMISSED, with prejudice. Petitioner's motion for appointment of counsel (#3) is DENIED.IT IS SO ORDERED.