Opinion
Civil Action No. 5:05cv198.
March 7, 2006
REPORT AND RECOMMENDATION OF UNITED STATE MAGISTRATE JUDGE
Petitioner Maurice Riemer Calhoun, a prisoner confined at F.C.I. Texarkana, brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. Pursuant to 28 U.S.C. § 636(b)(1) and (3) and the Amended Order for the Adoption of Local Rules for the Assignment of Duties to United States Magistrate Judges, the petition was referred to the undersigned United States Magistrate Judge, for findings of fact, conclusions of law, and recommendations for disposition of the case.
Petitioner asserts that he was convicted and sentenced in the United States Court for the Western District of Louisiana. He states that he was convicted of wire fraud and conspiracy to commit equity skimming. In his petition, Petitioner contends that he was wrongfully denied entrance into the Residential Drug Abuse Program and that he his wrongfully being denied his good conduct time credits. Petitioner contends that he is receiving only forty-seven days of good time annually rather than fifty-four.
Standards and Discussion Good Conduct Time Credits
Petitioner contends that his counsel informed him that he would receive fifty-four days of good conduct time for every year that he was sentenced, but that upon his arrival at F.C.I. Texarkana, he was informed that he would receive an average of forty-seven days for actual time served.
The Attorney General is responsible for sentence computation decisions under 18 U.S.C. § 3585(b), and the Attorney General has delegated that authority to the Federal Bureau of Prisons. United States v. Wilson, 503 U.S. 329,335 (1992); United States v. Dowling, 962 F.2d 390, 393 (5th Cir. 1992). Title 18 U.S.C. § 3624(b) provides the following:
(1) Subject to paragraph (2), a prisoner who is serving a term of imprisonment of more than 1 year other than a term of imprisonment for the duration of the prisoner's 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, subject to determination by the Bureau of Prisons that, during that year, the prisoner has displayed exemplary compliance with institutional disciplinary regulations. Subject to paragraph (2), if the Bureau determines that, during that year, the prisoner has not satisfactorily complied with such institutional regulations, the prisoner shall receive no such credit toward service of the prisoner's sentence or shall receive such lesser credit as the Bureau determines to be appropriate. In awarding credit under this section, the Bureau shall consider whether the prisoner, during the relevant period, has earned, or is making satisfactory progress toward earning, a high school diploma or an equivalent degree. Credit that has not been earned may not later be granted. Subject to paragraph (2), credit for the last year or portion of a year of the term of imprisonment shall be prorated and credited within the last six weeks of the sentence.
Title 18 U.S.C. 3624(b) provides the regulations for credit toward service of a sentence for satisfactory behavior. An inmate serving more than one year of imprisonment shall receive credit toward the service of his sentence, beyond the time served, of 54 days at the end of each year of his term of imprisonment, beginning at the end of the first year of the term. 18 U.S.C. 3624(b)(1).
The exception to this is if the Bureau of Prisons determines that during that year the inmate has not satisfactorily complied with institutional disciplinary regulations. Id. If the inmate has not satisfactorily complied with certain institutional disciplinary regulations, then he shall receive no such credit toward service of his sentence or shall receive such lesser credit as the Bureau of Prisons determines to be appropriate. Id.
The posting of good conduct time disallowance as it occurs requires calculation of start and stop dates. See Perez-Olivo v. Chavez, 394 F.3d 45, 48 and 53 (5th Cir. 2005); Id. After the first start date is calculated, all remaining start dates are exactly one year later. See Perez-Olivo, 394 F.3d at 48 and 53; 18 U.S.C. 3624(b)(1). After the first stop date is calculated, all remaining stop dates are exactly one year later. See Perez-Olivo, 394 F.3d at 48 and 53; 18 U.S.C. 3624(b)(1).
The Fifth Circuit Court of Appeals has not directly addressed this issue. In Sample v. Morrison, 406 F.3d 310, 311 (5th Cir. 2005), the petitioner filed a 28 U.S.C. § 2241 habeas petition asserting that the Bureau of Prisons ("BOP") is calculating his good time credit in a manner contrary to 18 U.S.C. § 3624(b); the petitioner argued that the statute requires that a prisoner be awarded fifty-four days of credit for each year of his prison term, as imposed by the court, whereas the BOP is computing such credit based on each year served, which allegedly would result in his receiving ninety-eight fewer days of good time credit over the course of his prison term. The district court denied the petitioner relief. Sample, 406 F.3d at 311. The Fifth Circuit Court of Appeals held that because of the temporally distant and speculative nature of the petitioner's claim, it was not ripe for review. Id. at 312.
The Fifth Circuit Court held that the statute makes clear that good time credit must be earned by a prisoner on an annual basis and that it is not awarded in advance Id. (citing 18 U.S.C. § 3624(b)). In dicta, the Fifth Circuit Court said that the plain language of 18 U.S.C. § 3624(b)(1) does not require that good time credit be computed in a manner awarding fifty-four days for each year of the "term of imprisonment" based on the "sentence actually imposed by the sentencing judge" and that the statute plainly states that an inmate must earn good time credit. Id. at 313. The Fifth Circuit Court said that the statute grants the BOP itself the power to determine whether or not, during a given year, the inmate has complied with institutional disciplinary rules, and that therefore, good time credit is not awarded in advance. Id. The statute plainly states that a prisoner cannot earn any good time credit until he has served at least one year of his prison term, and that at that time, and thereafter at the end of each year of the inmate's prison term, he "may" be awarded "up to 54 days" of good time credit. Id. The Fifth Circuit Court said that the plain effect of such annual awards is to reduce an inmate's prison term incrementally while he is serving it. Id.
The Bureau of Prisons has promulgated a rule implementing its interpretation of § 3624(b), ( Phillips v. Jeter, 2005 WL 975529 at 1 (N.D. Tex. April 26, 2005) (citing 28 C.F.R. § 523.20 (2004) ("Pursuant to 18 U.S.C. § 3624(b) . . . an inmate earns 54 days credit toward service of sentence (good conduct time credit) for each year served")) and also issued its Program Statement 5880.28 ( Id.). "The Bureau has issued, as part of its Sentence Computation Manual, Program Statement 5880.28, depicting a formula addressing the problem of calculating good-time credit on sentences of a year and a day and provides examples of the partial-year proration at the end of a sentence." White v. Scibana, 390 F.3d 997, 999-1000 (7th Cir. 2005).
The Bureau's proration and year-and-a-day formula is based on the premise that for every day a prisoner serves on good behavior, he may receive a certain amount of credit toward the service of his sentence, up to a total of fifty-four days for each full year. Thus, under the Bureau's formula, a prisoner earns .148 days' credit for each day served on good behavior (54/365 = .148), and for ease of administration the credit is awarded only in whole day amounts. Recognizing that most sentences will end in a partial year, the Bureau's formula provides that the maximum available credit for that partial year must be such that the number of days actually served will entitle the prisoner (on the .148-per-day basis) to a credit that when added to the time served equals the time remaining on the sentence.Id. at 1000.
As applied to a model inmate serving a sentence of a year and a day, the formula results in an anticipated release at day 319. On that day, the inmate will have earned forty-seven days of good time (319 x .148 = 47.2), and 47 + 319 = 366, or the full year-and-a-day sentence.Id. at 1000 n. 1 (citing BOP Program Statement 5880.28 at 1-45).
Other circuit courts have held that Program Statement 5880.28's good time calculation method is a reasonable interpretation of 18 U.S.C. § 3624(b) and therefore entitled to deference. White v. Scibana, 390 F.3d 997, 1001 n. 2 (7th Cir. 2005) (holding that Program Statement 5880.28 is premised on the Bureau's position that 18 U.S.C. § 3624(b) allows fifty-four days of good-time credit for each year served, which position is contained in 28 C.F.R. § 523.20, and that Program Statement 5880.28 is consistent with 28 C.F.R. § 523.20); Pacheco-Camacho v. Hood, 272 F.3d 1266, 1272 (9th Cir. 2001); see also Perez-Olivo v. Chavez, 394 F.3d 45, 52-54 (1st Cir. 2005); Brown v. Hemingway, 2002 WL 31845147 at 1 (6th Cir. Dec. 16, 2002). United States District Courts in the Northern District of Texas have rejected challenges to the Bureau of Prisons' good-time credit calculation that were based on the same theory Petitioner now asserts. Nichols v. Joslin, 2005 WL 1017833 at 3 (N.D. Tex. (Dallas Division) Mar. 25, 2005), adopted by 2005 WL 1017844 (N.D. Tex. April 28, 2005); see also, e.g., Shorthouse v. Van Buren, 2005 WL 241185 at 1-2 (N.D. Tex. (Fort Worth Division) Feb. 1, 2005), adopted by 2005 WL 465170 (N.D. Tex. Feb.28, 2005); Belasco v. Bidden, 2004 WL 2381248 at 2 (N.D. Tex. (Abilene Division) Oct.22, 2004).
In the United States Court for the Southern District of Texas, Houston Division, however, in Moreland v. Federal Bureau of Prisons, 363 F. Supp. 2d 882 (S.D. Tex. 2005), rev'd by, 431 F.3d 180, 189, pet. for cert. filed Dec. 8, 2005, the petitioner raised this issue ( 363 F. Supp. 2d at 884), and the Court granted her petition ( 363 F. Supp. 2d at 884 and 894). In doing so the Court rejected the Fifth Circuit Court of Appeal's Sample v. Morrison statement in dicta that if § 3624(b)'s statutory language does not "plainly" support the Bureau of Prisons' computation method, then the statute is at worst ambiguous ( 363 F. Supp. 2d at 890); rejected the Fifth Circuit Court of Appeal's Sample v. Morrison statement in dicta that if § 3624(b) "is ambiguous, deference to the BOP's interpretation thereof is required" ( 363 F. Supp. 2d at 892); held that the Bureau of Prisons' "interpretation conflicts with plain meaning, normal usage," and "accepted canons of statutory construction" ( 363 F. Supp. 2d at 887), although the majority of courts have held otherwise and the only two district courts holding that the Bureau of Prisons' interpretation conflicts with the statute have been reversed ( 363 F. Supp. 2d at 892); stated that 28 C.F.R. § 523.20 did not properly govern Moreland's good conduct time calculation because she was sentenced in January 1991, for crimes committed in February 1990, and the Bureau did not implement 28 C.F.R. § 523.20 via the Federal Register notice-and-comment procedure until 1997, more than seven years after the subject offenses ( 363 F. Supp. 2d at 892); and stated that good time credits vest at the end of each period of 311 days served ( 363 F. Supp. 2d at 893). The Fifth Circuit Court of Appeals reversed the Moreland decision, and rendered judgment denying the petition for writ of habeas corpus. Moreland, 431 F.3d at 189.
However, even courts in the Houston Division have disagreed on this issue and denied petitions for writ of habeas corpus that raised the same issue. See Stewart v. United States Bureau of Prisons, 2005 WL 1155123 at 2 (S.D. Tex. May 9, 2005); Morales v. United States Bureau of Prisons, 2005 WL 1155125 at 2 (S.D. Tex. May 9, 2005); Tilford v. United States Bureau of Prisons, 2005 WL 1155104 at 2 (S.D. Tex. May 9, 2005).
This Court agrees with the Fifth Circuit Court of Appeal's statement that if 18 U.S.C. § 3624(b)'s statutory language does not "plainly" support the Bureau of Prisons' computation method, then the statute is at worst ambiguous, in which case "deference to the BOP's interpretation thereof is required." Sample, 406 F.3d 310. This Court also agrees with the other circuit courts of appeals ( White, 390 F.3d at 1001 n. 2; Pacheco-Camacho, 272 F.3d at 1272; see also Perez-Olivo, 394 F.3d at 52-54; Brown, 2002 WL 31845147 at 1) and the United States District Courts in the Northern District of Texas ( Nichols, 2005 WL 1017833 at 3; see also, e.g., Shorthouse, 2005 WL 241185 at 1-2; Belasco, 2004 WL 2381248 at 2) that Program Statement 5880.28's good time calculation method is a reasonable interpretation of 18 U.S.C. § 3624(b) and therefore entitled to deference.
Petitioner has not shown that his good time credit is being calculated incorrectly. Consequently, Petitioner is not entitled to habeas corpus relief with respect to the good time calculation.
Program Eligibility
The Residential Drug Abuse Treatment Program is a treatment unit set apart from the general prison population and lasting a minimum of five-hundred hours over a six to twelve-month period. 28 C.F.R. § 550.56. Pursuant to 18 U.S.C. § 3621(b), "[t]he Bureau [of Prisons] shall make available appropriate substance abuse treatment for each prisoner the Bureau determines has a treatable condition of substance addiction or abuse. Congress specified that the substance abuse treatment occur in the form of a residential program and that priority be given "based on an eligible prisoner's . . . release date." 18 U.S.C. § 3621(b); Venegas v. Henman, 126 F.3d 760, 762 (5th Cir. 1997), cert. denied, 523 U.S. 1108 (1998).
An "eligible prisoner" is defined as "as prisoner who is . . . determined by the Bureau of Prisons to have a substance abuse problem" and who is willing to participate in the treatment program. 18 U.S.C. § 3621(e)(5)(B). The Bureau of Prisons has discretion regarding eligibility for substance abuse treatment ( Wottlin v. Fleming, 136 F.3d 1032, 1037 (5th Cir. 1998); Venegas v. Henman, 126 F.3d 760, 762 (5th Cir. 1997), cert. denied, 523 U.S. 1108 (1998) (citing 18 U.S.C. § 3621(b))) and related sentence reduction ( Warren v. Miles, 230 F.3d 688, 693 (5th Cir. 2000); Venegas, 126 F.3d at 762 (citing 18 U.S.C. § 3621(b))), and that discretion is considerable ( Venegas, 126 F.3d at 762 (citing 18 U.S.C. § 3621(b))).
Petitioner submits a May 20, 2005, letter from his personal physician W. Leigh Dillard, M.D. to show a substance abuse problem. Dr. Dillard's letter says, "From what Reimer has shared with me in a recent letter he was certainly suffering from" substance abuse, if not substance dependence. Dr. Dillard's letter says that he spoke to several members of the community who knew Petitioner well and that Dr. Dillard now recognizes a pattern of behavior that would be very consistent with substance abuse, but that Petitioner kept his problem a secret and never sought treatment. Dr. Dillard said that Petitioner's admitted drug of choice was Dr. Tichenor's antiseptic, a readily available over-the-counter product containing seventy percent alcohol. Petitioner also submits the following:
1. a May 17, 2005, letter from Donald R. Taylor, M.D. opining that Petitioner was abusing alcohol in the year prior to his incarceration;
2. a May 16, 2005, letter from Dr. Calvin Phelps, a minister and pastoral counselor, opining that Petitioner abused antiseptic or mouthwash;
3. a May 5, 2005, letter from convenience store employee Fern Scott Winkler stating that almost daily, Petitioner bought a diet coke and Listerine, and sometimes several bottles of Listerine at a time;
4. a letter from convenience store employee Mary P. Ladd opining that daily, Petitioner bought a diet coke, at least one bottle of Listerine, and sometimes several bottles of antiseptic;
5. a May 17, 2005, letter from Drug Court Probation Officer Judson C. Rives, who has known Petitioner "almost since birth," and who opined that Petitioner abused alcohol and that whenever alcohol was served, Petitioner "always has some close at hand"; and
6. a May 5, 2005, letter from Don R. English, at the Mansfield Police Department, who opined that Petitioner's abuse of alcohol and pain killers is not widely-known in his home community.
The Bureau of Prisons determined that Petitioner was not eligible for the Residential Drug Abuse Treatment Program. The Bureau of Prisons referred to letters submitted by Petitioner as testimonials.
Program Statement 5330.10, Drug Abuse Program Manual, Inmate, Chapter 5, 5.4.1 requires that for an inmate to be eligible for the Residential Drug Abuse Program, he must have a verifiable, documented drug abuse problem. "Drug abuse program staff shall determine if the inmate has a substance abuse disorder by first conducting the Residential Drug Abuse Program Eligibility Interview followed by a review of all pertinent documents in the inmate's central file to corroborate self-reported information." Program Statement 5330.10, Drug Abuse Program Manual, Inmate, Chapter 5, 5.4.1[a](1). During Petitioner's October 21, 2003, intake screening, he told the staff psychologist that he had no history of substance abuse.
Program Statement 5330.10, Drug Abuse Program Manual, Inmate, Chapter 5, 5.4.1[a](1) requires that for an inmate to be eligible for the Residential Drug Abuse Program, the inmate's Presentence Investigation Report or other similar documents in the central file must support the diagnosis of substance abuse or dependence indicated in the Diagnostic and Statistical Manual of the Mental Disorders, 4th Edition, (DSM-IV), and the substance must be the same as that for which a diagnosis of abuse or dependence was made via the interview. Program Statement 5330.10, Drug Abuse Program Manual, Inmate, Chapter 5, 5.4.1[a](1). The Bureau of Prisons determined that Petitioner's Presentence Investigation Report and other documents in his records do not support his self-reported information. His Presentence Investigation Report, under Substance Abuse, says, "the defendant claims he does not drink alcohol and has never used any illegal controlled dangerous substances." Presentence Investigation Report at 18.
Petitioner was given the opportunity to and did complete an eleven-week, non-residential drug abuse program at F.C.I. Texarkana. Petitioner has not shown that the Bureau of Prisons abused its broad discretion in determining that Petitioner was ineligible for the Residential Drug Abuse Program.
Early Release
A convicted person has no constitutional or inherent right to be conditionally released before the expiration of a valid sentence. Connecticut Bd. of Pardons v. Dumschat, 452 U.S. 458, 464 (1981); Wottlin, 136 F.3d at 1036-37. As an incentive for inmates deemed by the Bureau of Prisons to have a treatable condition of substance addiction or abuse, 18 U.S.C. § 3621(e)(2)(B) provides that "[t]he period a prisoner convicted of a nonviolent offense remains in custody after successfully completing a treatment program may be reduced by the Bureau of Prisons." The maximum length of such a sentence reduction is one year from the term the inmate would have otherwise served. 18 U.S.C. § 3621(e)(2)(B).
The Bureau of Prisons has the authority to rely on rule-making to resolve certain issues of general applicability unless Congress clearly expresses an intent to withhold that authority. Lopez v. Davis, 531 U.S. 230, 243-44 (2001). The statutory provision for early release explicitly vests considerable discretion with the Bureau of Prisons. Warren v. Miles, 230 F.3d 688, 693 (5th Cir. 2000); Venegas, 126 F.3d at 762 (citing 18 U.S.C. § 3621(b)). The operative statutory language is that an inmate's term of imprisonment " may be reduced by the Bureau of Prisons." Venegas, 126 F.3d at 763 (emphasis added). Petitioner has no constitutional or inherent right to be allowed to reduce his sentence by participation in the rehabilitation program.
Recommendation
It is accordingly recommended that Petitioner's motions for summary judgment (dkt. ##8 and 10) be denied and that the petition be dismissed with prejudice.
Objections
Within ten days after receipt of the magistrate judge's report, any party may serve and file written objections to the findings and recommendations contained in the report.
A party's failure to file written objections to the findings, conclusions and recommendations contained in this Report within ten days after being served with a copy shall bar that party from de novo review by the district judge of those findings, conclusions and recommendations and, except on grounds of plain error, from appellate review of unobjected — to factual findings and legal conclusions accepted and adopted by the district court. Douglass v. United States Auto Ass'n, 79 F.3d 1415, 1430 (5th Cir. 1996) ( en banc).