United States District Court, S.D. New York
December 15, 2004.
ROBERTO COTTO, Petitioner,
BUREAU OF PRISONS, Respondent.
The opinion of the court was delivered by: LEWIS KAPLAN, District Judge
Roberto Cotto petitions for a writ of habeas corpus, pursuant
to 28 U.S.C. § 2141, for a determination that 18 U.S.C. § 3624(b)
requires the Bureau of Prisons to base its good conduct time
computations on the length of the court-imposed sentence rather
than the time actually served as required by the Bureau's
pertinent regulation, 28 C.F.R. § 523.20 (2004).
This is one of a large number of substantially identical
petitions pending in this and, no doubt, other district courts in
the wake of White v. Scibana, 314 F. Supp.2d 834 (W.D. Wis.
2004), which appears to be the only case that has adopted
petitioner's view of the statute. Less than two weeks ago,
however, the Seventh Circuit reversed that ruling and concluded
that the Bureau's regulation construing the statute was entitled
to deference and was controlling. White v. Scibana, No.
04-2410, 2004 WL 2749863 (7th Cir. Dec. 2, 2004). In consequence,
it now appears that every case to have considered the issue has
come out against petitioner save for the district court decision
reversed in White.
This Court has independently reviewed the question and
concluded that petitioner's position is without merit for the
reasons set forth by the Seventh Circuit and for the additional
reasons stated in the respondent's brief. Accordingly, the
petition is denied and the case dismissed. Inasmuch as the Second
Circuit has not passed on this issue, however, the Court grants a
certificate of appealability.
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