The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge
Reginald Neal, a federal prisoner appearing pro se, filed a Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2241. Neal is currently in the custody of the Federal Bureau of Prisons, incarcerated at the U.S. Penitentiary, Hazelton, Bruceton Mills, West Virginia. Respondent has answered, and Neal has replied.
I. BACKGROUND/PRIOR PROCEEDINGS
Pursuant to a negotiated plea agreement, Neal entered a guilty plea to charges of racketeering (18 U.S.C. § 1962(c)), conspiracy to murder in aid of racketeering (18 U.S.C. § 1959(a)(5)), and drug conspiracy (21 U.S.C. § 846). All other charges were dismissed. In March 2001 the United States District Court for the District of Massachusetts sentenced Neal to a prison term of 240 months on the racketeering conviction and 64 months on both the conspiracy to murder in aid of racketeering and drug conspiracy convictions, to be served concurrently with each other and consecutive to the racketeering conviction, for a total sentence of 304 months. The Judgment included the following notation: "Total amount imposed (304 months) reflects 56 months credit for time served while in state custody on a related case per U.S.S.G. G1.3(b). This should not be construed as a departure from the guideline range."*fn2
On December 1, 2008, Neal filed a Request for an Administrative Remedy (BP-229) that he be given Good Conduct Time ("GCT") based upon a 360-month sentence with the Warden at the Federal Correctional Institute in Ray Brook. The Warden denied his request and the Regional Director upheld the decision on February 6, 2009. Neal attached to his Petition a copy of a letter dated July 22, 2009, indicating that he filed a Central Office Administrative Appeal with the Office of General Counsel on April 7, 2009; however, the record does not indicate that the appeal was processed.*fn3 Neal filed his Petition for relief in this Court on August 26, 2009.
On August 27, 2009, Neal filed a Motion to Correct a Judgment in a Criminal Case in the District of Massachusetts.*fn4 On September 22, 2009, in an Electronic Order, the trial court denied Neal's motion, holding:
Judge Nancy Gertner: Electronic ORDER entered denying Motion to Correct Judgment as to Reginald D. Neal (32). "Defendant Neal moves to correct the sentence he received on March 15, 2001 because he has not received good conduct credit for the 56 months he spent in state custody prior to sentencing. At the time of sentencing, this Court intended that the Bureau of Prisons treat his sentence as 360 months for purposes of calculating good conduct credit, so that his total time served would be equivalent to a similarly situated defendant who served his initial 56 months in federal custody. Assuming good behavior, Neal would be entitled to over eight months of credit for that time in state custody. See 18 U.S.C. § 3624(b). If the
Court had known that the Bureau of Prisons would not give him credit for time already served, it would have reduced his total sentence by eight months. This Court lacks jurisdiction, however, to correct sentencing errors of this kind years after sentencing. See Fed. R. Crim. P. 35(a) ("Within 7 days after sentencing, the court may correct a sentence that resulted from arithmetical, technical, or other clear error."); see also United States v. Fahm, 13 F.3d 447, 454 n.8 (1st Cir. 1994) ("Rule 36 is considered generally inapplicable to judicial errors and omissions." The Motion to Correct Judgment in a Criminal Case 2040 is DENIED."*fn5
On November 25, 2009, the Massachusetts District Court denied reconsideration in a text entry.*fn6
It does not appear from the record in that case that Neal appealed the denial of either motion.
In denying Neal's Appeal at the regional level, the Regional Director held:
You appeal the decision of the Warden at FCI Ray Brook regarding the calculation of your Good Conduct Time (GCT). You contend you should earn GCT based on a 360-month term and not the "adjusted" sentence imposed of 304 months.
Your records revealed the following. On February 12, 2001, you were sentenced in the United States District Court for the District of Massachusetts to a total term of 304 months, for violation of 18 U.S.C. §1962(c), Racketeering, 18 U.S.C. § 1959(a) (5), Conspiracy to Murder in Aid of Racketeering and 21 U.S.C. §846, Drug Conspiracy. The Sentencing Judge applied the Sentencing Guideline 5G1.3(b) and adjusted the potential sentence of 360 months by 56 months since your federal offense was related to your state offense and since the 56 months would not qualify for federal prior custody credit under 18 U.S.C. § 3585(b). This period of time was credited to your state sentence and § 3585(b) prohibits double credit. The federal sentence was ordered to run concurrent with your state sentence. Your federal sentence commenced on February 12, 2001, under 18 U.S.C. § 3585(a).
Good Conduct Time (GCT) is governed by 18 U.S.C. § 3624(b), which provides the following: "... [A] prisoner who is serving a term of imprisonment of more than one year other than [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, ...." The Bureau applies available GCT to time spent serving a federal sentence and to time considered as prior custody credit under § 3585(b). The adjustment by the Sentencing Judge was for time in detention which did not meet the requirements of ...