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COTTO v. BUREAU OF PRISONS

United States District Court, S.D. New York


December 15, 2004.

ROBERTO COTTO, Petitioner,
v.
BUREAU OF PRISONS, Respondent.

The opinion of the court was delivered by: LEWIS KAPLAN, District Judge

ORDER

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.

  SO ORDERED.

20041215

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