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United States District Court, S.D. New York

December 9, 2004.


The opinion of the court was delivered by: MICHAEL MUKASEY, Chief Judge, District


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 the sentence.
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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