United States District Court, S.D. New York
December 9, 2004.
HENRY WALLACE Petitioner,
BUREAU OF PRISONS, Respondent.
The opinion of the court was delivered by: MICHAEL MUKASEY, Chief Judge, District
OPINION & ORDER
Petitioner pro se petitions for habeas corpus pursuant to
28 U.S.C. § 2241 (2000), arguing that a Bureau of Prisons
regulation, 28 C.F.R. § 523.20, improperly interprets
18 U.S.C. § 3624(b), the statute allowing good-conduct reductions of the
length of time federal prisoners are incarcerated.
The statute at issue provides:
[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
18 U.S.C. § 3624(b)(1). The corresponding Bureau of Prisons
regulation provides that good conduct reductions are to be
computed on the basis of time actually served, not on the basis
of the sentence imposed. 28 C.F.R. § 523.20.
Respondent argues for the correctness of its regulation on two
grounds: First, the statute, read as a whole, unambiguously
intends the phrase "term of imprisonment" to refer to the time
served, and second, even if the phrase is ambiguous, courts must
award substantial deference to the regulation if it is based on a
"permissible construction of the statute." Chevron U.S.A., Inc. v. Natural Resources Def. Council, Inc.,
467 U.S. 837, 843 (1984). Petitioner contends that "term of
imprisonment," as used in the statute, plainly means the length
of the prisoner's sentence, rather than the actual time served.
Petitioner relies on White v. Scibana, 314 F. Supp. 2d 834
(W.D. Wisc. 2004), to support his argument. However, the Seventh
Circuit recently reversed the District Court's opinion in
White, White v. Scibana, No. 04-2410, 2004 U.S. Dist. LEXIS
24813 (7th Cir. Dec. 2, 2004), and there is now no case authority
supporting petitioner's interpretation of § 3624.
Numerous courts have considered petitioner's argument, and all
have rejected it, most on the ground that although the statute is
ambiguous, the Bureau of Prisons regulation is a permissible and
reasonable interpretation of the good conduct statute. See,
e.g., White, 2004 U.S. Dist. LEXIS 24813; Brown v.
Hemingway, No. 02-1948, 53 Fed. Appx. 338, 2002 WL 31845147
(6th Cir. Dec. 16, 2002); Pacheco-Camacho v. Hood,
272 F.3d 1266 (9th Cir. 2001); Moore v. Bureau of Prisons, No.
04-5011, 2004 WL 2609589 (S.D.N.Y. Nov. 17, 2004); Young v.
Ashcroft, No. 04-1449, 2004 WL 2624724 (D. Or. Nov. 16, 2004);
Sash v. Zenk, No. 04-2476, 2004 WL 2549724 (E.D.N.Y. Nov. 9,
2004); Loeffler v. Bureau of Prisons, No. 04-4627, 2004 WL
2417805 (S.D.N.Y. Oct. 29, 2004); Muratella v. Veltri, No.
04-456 (S.D. Ill. Sept. 2, 2004); Graves v. Bledsoe,
334 F. Supp. 2d 906 (W.D. Va. 2004); Pasciuti v. Drew, No. 04-043, 2004 WL 1247813 (N.D.N.Y. June 2, 2004);
Webb v. Deboo, No. 03-961 (D. Conn. Sept. 18, 2003); cf.
Williams v. Lamanna, No. 01-3198, 20 Fed. Appx. 360, 2001 WL
1136069 (6th Cir. Sept. 19, 2001) (denying petition for habeas
because § 3624(b) unambiguously uses "term of imprisonment" to
mean time served); Barretto v. Bureau of Prisons, No. 04-5346
(S.D.N.Y. Oct. 8, 2004) (same); Camacho v. Bureau of Prisons,
No. 04-5765 (S.D.N.Y. Oct. 8, 2004) (same); O'Donald v.
Johns, No. 03-164 (W.D. Pa. June 10, 2004); (same); De
Gerolamo v. White, No. 03-139 (D.N.J. May 20, 2003) (same).
Our Circuit is considering this issue in the Pasciuti case,
which has been briefed and argued. As Judge Lynch recently wrote,
"No purpose would be served by rehashing the arguments set forth
in the many opinions cited above," particularly while this issue
is pending before our Circuit. Moore, 2004 WL 2609589 at *1. I
agree with Judge Lynch also that Magistrate Judge Gorenstein's
opinion in Loeffler provides a thorough explanation of the
reasons why the regulation at issue is a reasonable
interpretation of § 3624(b) entitled to substantial deference.
Id.; see Loeffler, 2004 WL 2417805.
* * *
For the above reasons, the petition is denied. Because
petitioner has not made a substantial showing that he has been denied a constitutional right, a certificate of appealability
will not issue. Slack v. McDaniel, 529 U.S. 474, 483-84
(2000). Reasonable jurists could not differ as to the resolution
of Wallace's petition, and the issues presented are not "adequate
to proceed further." Barefoot v. Estelle, 468 U.S. 880, 893
n. 4 (1983).
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