The opinion of the court was delivered by: Richard J. Holwell, District Judge
MEMORANDUM OPINION AND ORDER
Federal law encourages prisoners to behave well. 18 U.S.C. § 3624(b) directs the Federal Bureau of Prisons ("BOP") to apply up to 54 days of Good Conduct Time ("GCT") against a prisoner's sentence for each year that he or she displays "exemplary compliance with institutional disciplinary regulations." The issue in this case is whether the statute permits prisoners to accrue GCT for time served before the day they are sentenced in federal court, and if so, under what circumstances. The BOP awards GCT for time in pretrial detention to any prisoner who is eventually sentenced on "the crime for which he or she was in pretrial status," regardless of whether the pretrial time was served in state or federal custody. 28 C.F.R. § 523.17(l). The agency deviates from that policy, however, where a prisoner serves pretrial time that is also credited against a related state sentence. For example, if a prisoner is convicted of and sentenced for a crime in state court and then writted into federal custody, prosecuted, and sentenced on a related federal charge, the BOP will not award GCT for any time served-whether in state or federal custody-before the federal sentencing date. Frank Lopez, a federal prisoner, served eight years on a state narcotics conviction, four of them in federal pretrial custody, before being convicted and sentenced for a related narcotics conspiracy in federal court. He brings a petition for a writ of habeas corpus under 28 U.S.C. § 2241 challenging the BOP's determination that he is not eligible for GCT under § 3624(b) for either (1) the four years he served in state prison before being writted into federal custody; or (2) the four years he was detained in federal custody prior to his federal sentencing date. The petition is granted. The Court applies Skidmore deference but finds the BOP's interpretation of § 3624(b) unpersuasive. The case is remanded to the BOP for recalculation of Lopez's GCT in a manner consistent with this opinion, based on a term of imprisonment that began when he was arrested on August 11, 2000.
Frank Lopez is currently serving a federal sentence for conspiracy to distribute crack cocaine. This Court sentenced Lopez for that crime on June 19, 2008, but by that time he had already served almost eight years in state and federal prisons as a result of the same drug-related conduct that led to the federal sentence. This continuous period of incarceration began on August 11, 2000, when New York City police officers arrested Lopez for selling crack in the Bronx. He pleaded guilty shortly thereafter to criminal sale of a controlled substance and was sentenced to 4.5 to 9 years in prison. After serving a little over four years on this charge, Lopez was writted into federal custody on November 4, 2004, and was indicted in April 2005 in the Southern District of New York on federal charges for conspiring to distribute crack during the period of 1993 through August 2000. The only overt act specified in the indictment was the same crack deal underlying the state conviction. (Hasan Decl. Ex. C.) Lopez pleaded guilty before this Court on September 27, 2007, and was sentenced the following June. New York State credited all of the time Lopez spent in federal pretrial custody (from November 4, 2004, to June 19, 2008) against his state sentence. However, neither state nor federal authorities awarded Lopez any GCT for the time he served from August 11, 2000 to June 19, 2008.*fn1
In the nine month period between the federal plea date and the sentencing date, the Court held a conference and received supplemental briefing on whether Lopez should receive sentencing credit (as distinct from GCT) for the time already served in either state or federal custody, given that the state and federal convictions concerned the same conduct. The Court ultimately decided Lopez was entitled to an adjustment for all the time previously served pursuant to U.S.S.G. § 5G1.3(b), which instructs courts to reduce a federal sentence by any period of imprisonment already served on an undischarged sentence for the same offense conduct. See United States v. Fermin, 252 F.3d 102, 107 (2d Cir. 2001).*fn2 Accordingly, the Court imposed the following sentence at the sentencing hearing:
It is the judgment of this court that the defendant Frank Lopez is hereby committed to the custody of the United States Bureau of Prisons, to be imprisoned for a term of 132 months concurrent with the undischarged term of imprisonment on his state narcotics convictions and with a credit for time served in state and federal custody from [August] 11, 2000. (Sentencing Tr., Hasan Decl. Ex. E at 17:10-15.)*fn3
Since the federal sentencing, Lopez has spent time in three different institutions. First, he briefly returned to state custody, where he completed his state sentence on or about December 31, 2008. (Return ¶ 10.) Pursuant to the Court's order that the federal sentence run concurrently with the state sentence, this period in state custody counted against both sentences, and pursuant to BOP policy-which does not condition GCT eligibility upon custody in a federal institution-Lopez accrued GCT during this six-month period. (Kelly Decl. Ex. 7.) Next, the BOP resumed custody of Lopez and assigned him to a maximum security prison in Beaumont, Texas to serve the remainder of his federal sentence. Despite this assignment, however, Lopez has spent much of his time since returning to federal custody at Metropolitan Correctional Center ("MCC") in Manhattan, where he was incarcerated at the time he filed his § 2241 petition and where he remains now. (Pet. at 1; Resp. Br. at 1.)
The disputed issue is whether, under the GCT statute, Lopez may receive GCT for good behavior during time served in either state or federal custody before the federal sentence date. The statute reads, in pertinent part,
[A] prisoner who is serving a term of imprisonment of more than 1 year... 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....
18 U.S.C. § 3624(b) (emphasis added). Lopez argues that his eight years of presentence time*fn4 qualify for GCT because that time comprised part of a 132-month "term of imprisonment" imposed by the plain language of the Court's sentencing order. (See Hasan Decl. Ex. E at 17 ("Frank Lopez is... to be imprisoned for a term of 132 months... with a credit for time served in state and federal custody from [August] 11, 2000.").) Put differently, Lopez interprets the statutory phrase "term of imprisonment" to encompass all of the time he has served for the federal offense. According to the sentencing order, he argues, that period includes the presentence time. The BOP disagrees for three primary reasons. First, it argues that temporal language in the statute hinting at an annualized review process-phrases like "54 days at the end of each year"-restricts the scope of GCT eligibility to time served after a sentence is imposed. (Resp. Br. at 18 ("The plain language of the GCT statute contemplates a 'real time' analysis of GCT, one year at a time, providing for both a temporal limitation and a scope limitation on GCT calculation.").) Second, the BOP argues that "term of imprisonment" is synonymous with "sentence," and that GCT is thus only available for time served on a federal sentence itself. (Resp. Br. at 13.) Although Lopez received an adjustment for the eight years of presentence time, the BOP contends that time did not form part of his actual "sentence," as defined by federal statute and § 5G1.3(b). Finally, the BOP argues that a different statute, 18 U.S.C. § 3585(b), bars it from awarding GCT for Lopez's presentence time, because that time was also credited against his state sentence. (Resp. Br. at 10; see United States v. Labielle-Soto, 163 F.3d 93, 99 (2d Cir. 1998) (citing 18 U.S.C. § 3585(b))).
The disagreement carries large potential consequences. If Lopez is correct that all of his presentence time is eligible for GCT, he could be released as early as March 24, 2010 (depending on his disciplinary record). On the other hand, if the BOP is correct, Lopez will remain in federal custody for at least another year, until March 22, 2011.
It is important to note that the issue in this case concerns only the range of time for which Lopez is eligible for GCT under the statute. Whatever the correct time range, it falls to the BOP to evaluate Lopez's conduct to determine the amount of GCT he has actually earned. 18 U.S.C. § 3624(b); see Sash v. Zenk, 428 F.3d 132, 135 (2d Cir. 2005). Thus, though Lopez's conduct will affect his ultimate release date, it is not relevant to this petition, which raises a question of pure statutory interpretation. Only one entry in Lopez's disciplinary record bears upon the issues here, and not because of anything it reflects about Lopez, but because it is relevant to the BOP's argument: in 2005, three years before it contends Lopez even became eligible for GCT, the BOP disciplined him for an altercation with another inmate in federal detention by declaring that it would debit him 21 days of GCT, a disciplinary measure the BOP now argues it did not have the power to impose since (in its view) no GCT was accruing.*fn5
Administrative Remedy Process
Before he filed this petition, Lopez attempted to resolve his grievance over GCT computation administratively. At his request, his counsel articulated his position on the GCT statute to the Assistant United States Attorneys who had prosecuted him. (Hasan Decl. Ex. I.) The prosecutors forwarded the issue to the BOP's Office of General Counsel, which responded by letter that the BOP's calculations were correct and that Lopez was ineligible to accrue GCT until the date of his federal sentencing. (Hasan Decl. Ex. J.)
Lopez thereafter sought relief through the BOP's Administrative Remedy Program ("ARP"), which has four steps: (1) informal presentation of the grievance to the facility's staff; (2) a written remedy request to the Warden; (3) an appeal to the BOP Regional Director; and (4) an appeal to the BOP's Office of General Counsel. 28 C.F.R. §§ 542.13, 542.14, 542.15. Lopez climbed through the first three levels without obtaining relief: he attempted unsuccessfully to resolve his concerns with the staff at Beaumont; the Warden denied his remedy request; and the Regional Director issued a written denial of his appeal. (Mason Decl. Ex. 2 -- 5.) Lopez next submitted an appeal to the Office of General Counsel. That office rejected his application without considering its merits because Lopez had attached three continuation pages to the appeal form, in violation of 28 C.F.R. § 545.15(b)(3), which only permits one continuation page. (Mason Decl. ¶ 6.) Rather than correct and resubmit the appeal, Lopez filed a habeas petition under § 2241 on September 23, 2009, seeking an order directing the BOP to recalculate his GCT based on his entire term of incarceration, including all of the presentence time, and to transfer him to a halfway house to complete the remainder of his sentence.*fn6 (Pet. at 1.)
Because Lopez is incarcerated at MCC, which is within the Southern District of New York, the Court has jurisdiction over his § 2241 petition. Rumsfeld v. Padilla, 542 U.S. 426, 443 (2004).
The BOP argues that the petition should be dismissed because Lopez did not exhaust his administrative remedies, given that he failed to re-submit his appeal to the General Counsel after it was rejected for containing two extra continuation pages.
"[F]ederal prisoners must exhaust their administrative remedies prior to filing a petition for habeas relief." Carmona v. U.S. Bureau of Prisons, 243 F.3d 629, 634 (2d Cir. 2001). The exhaustion requirement for § 2241 petitions, however, is prudential, not statutory, and may be excused at the court's discretion. Zucker v. Menifee, 03 Civ. 10077(RJH), 2004 WL 102779, at *4 (S.D.N.Y. Jan. 21, 2004); Snyder v. Angelini, 07 CV 3073 (NGG), 2008 WL 4773142, at *2 (E.D.N.Y. 2008). Courts excuse failures to exhaust when "(1) available remedies provide no genuine opportunity for adequate relief; (2) irreparable injury may occur without immediate judicial relief; (3) administrative appeal would be futile; and (4) in certain instances a plaintiff has raised a substantial constitutional question." Beharry v. Ashcroft, 329 F.3d 51, 62 (2d Cir. 2003) (internal quotations omitted).
Lopez did not fail to exhaust his administrative remedies. He submitted petitions at all four levels of the ARP, including an appeal to the General Counsel. His failure to re-submit this appeal after the General Counsel rejected it because he attached two extra pages does not constitute a failure to exhaust. As another court has seen fit to remind the BOP, "[a]dministrative exhaustion is not a game of legal gotcha." Huff v. Sanders, 632 F. Supp. 2d 903, 908 (E.D. Ark. 2008) (quoting Schneider v. Delo, 85 F.3d 335, 339 (8th Cir. 2008)). The purpose of exhaustion is to give an agency ...