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YEISER v. BUREAU OF PRISONS

United States District Court, S.D. New York


February 7, 2005.

JEROME YEISER, Petitioner,
v.
BUREAU OF PRISONS, Respondent.

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

ORDER

Petitioner was convicted in the United States District Court for the District of Arizona and sentenced principally to a term of imprisonment of thirty-seven months. He is serving his sentence at FCI Otisville, and has a projected release date of October 3, 2006, assuming that he receives the maximum credit for good conduct that is available to him. He filed this petition, pursuant to 28 U.S.C. § 2241, in an effort to obtain a determination that the Bureau of Prison's computation of his projected release date reflects a misinterpretation of the controlling statute, 18 U.S.C. § 3624(b). The nub of the dispute is whether the good time computation should award 54 days of credit per year of the inmate's sentence or, as the Bureau of Prisons has determined, 54 days of credit for each year actually served.

A large and increasing number of courts have been faced with the identical issue. All save one have upheld the Bureau's position. The one case to the contrary, White v. Scibana, 314 F. Supp.2d 834 (W.D. Wis. 2004), recently was reversed by the Seventh Circuit. White v. Scibana, 390 F.3d 997 (7th Cir. 2004). The three other circuits to have considered the issue also have rejected petitioner's argument, as have Judges Brieant and Lynch of this Court. Perez-Olivia v. Chavez, 394 F.3d 45, 49 (1st Cir. 2005); 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, 1271 (9th Cir. 2001); Barretto v. Bureau of Prisons, No. 04 Civ. 5346(CLB) (S.D.N.Y. Oct. 8, 2004); Moore v. Bureau of Prisons, No. 04 Civ. 5011 (GEL), 2004 WL 2609589 (S.D.N.Y. Nov. 17, 2004).

  This Court agrees with the analysis in the cited cases. There is no basis for upsetting the Bureau's determination of petitioner's projected release date or the method by which it computes good time credit. Page 2

  Accordingly, the petition is denied. In the absence of a single viable decision supporting petitioner's position and the uniform rejected of his arguments by all courts of appeals to have considered them, a certificate of appealability is denied. The Court certifies, for purposes of 28 U.S.C. § 1915, that an appeal herefrom would not be taken in good faith. The Clerk shall close the case.

  SO ORDERED.

20050207

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