The opinion of the court was delivered by: JERRY CAVANEAU, Magistrate Judge
MEMORANDUM OPINION AND ORDER
Dwayne White, an inmate in the Federal Correctional Institution
in Forrest City, Arkansas, brings this 28 U.S.C. § 2241 petition
for writ of habeas corpus (docket entry #1), alleging that the
Bureau of Prisons (BOP) is miscalculating his good conduct time
credits. Respondent contends that the petition is without merit
(docket entry #5), and Petitioner has replied (docket entry #7).
For the reasons that follow, the petition must be
According to Petitioner, he is serving a 180-month sentence,
imposed on April 3, 1995. He says the BOP has inaccurately
calculated his projected good conduct time credits at the rate of
forty-seven days for each year of his sentence, when the
applicable statute, 18 U.S.C. § 3624(b), provides for fifty-four
days of credit for each year of the sentence. This is due to the
BOP's policy of awarding good conduct time based on the time
actually served on a sentence, rather than the sentence imposed.
Petitioner says he is entitled to earn up to 810 days of good
conduct time, which would place his projected release date in
June 2007, and he asks the Court to direct the BOP to recalculate
his good conduct time accordingly. Federal prisoners have a statutory right to receive credit
toward their sentences for good behavior. 18 U.S.C. § 3624(a) &
(b). Section 3624(b)(1) provides in relevant 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. . . . [C]redit 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
Once credit is awarded under this statute, the number of years
that a prisoner actually will serve will be less than the imposed
sentence. The BOP has interpreted § 3624(b) as entitling a
prisoner to be awarded good conduct time credits based only on
the time he has served, rather than on the full sentence that he
received. 28 C.F.R. § 523.20(a)(1) (stating that the BOP "shall
award . . . 54 days credit for each year served (prorated when
the time served by the inmate for the sentence during the year is
less than a full year)") (emphasis added); BOP Program Statement
5880.28, at 1-40 to 1-61 (Feb. 21, 1992), available at
http://www.bop.gov (setting forth detailed calculation
The position advanced by Petitioner that he should receive
credit for each year of the sentence imposed was rejected by
the Eighth Circuit Court of Appeals in James v. Outlaw,
126 Fed. Appx. 758 (8th Cir. 2005) (unpub. per curiam), as follows:
We conclude that § 3624(b) is ambiguous because it
does not clearly indicate whether a prisoner's good
time credits are based on the time served in prison
or the sentence imposed. See White v. Scibana,
390 F.3d 997 (7th Cir. 2004)[, cert. denied,
125 S. Ct. 2921 (2005)]; Pacheco-Camacho v. Hood,
272 F.3d 1266 (9th Cir. 2001)[, cert. denied, 535 U.S. 1105
(2002)]. Since the BOP regulation was adopted through
the notice and comment procedure, it is entitled to
deference under Chevron U.S.A., Inc. v. Natural Res.
Def. Council, Inc., 467 U.S. 837 (1984), and we
conclude that it is a reasonable interpretation of
the statute. Id. at 759. This ruling was reiterated in United States v.
Wittman, 139 Fed. Appx. 759, 760 (8th Cir. 2005) (unpub. per
curiam) (citing James and rejecting prisoner's argument that
BOP's calculation method is contrary to Congress's intent and
also finding rule of lenity inapplicable to resolve ambiguity).
The Eighth Circuit's decisions are in accord with rulings from
every other Circuit Court of Appeals that has addressed the
issue. Perez-Olivo v. Chavez, 394 F.3d 45, 48-54 (1st Cir.
2005); O'Donald v. Johns, 402 F.3d 172, 173-74 (3d Cir. 2005);
Yi v. Fed. Bureau of Prisons, 412 F.3d 526, 530-35 (4th Cir.
2005); Sample v. Morrison, 406 F.3d 310, 312-13 (5th Cir. 2005)
(dicta); Petty v. Stine, No. 05-5379, 2005 WL 2258042 (6th Cir.
Sept. 19, 2005); White, 390 F.3d at 1000-02; Pacheco-Camacho,
272 F.3d at 1270-71. But see Moreland v. Fed. Bureau of
Prisons, 363 F. Supp. 2d 882, 885-94 (S.D. Tex. 2005) (agreeing
with Petitioner's position); Williams v. Dewalt,
351 F. Supp. 2d 412, 413-20 (D. Md. 2004) (same).
In O'Donald, the Third Circuit explained that the BOP's
interpretation of § 3624(b)'s ambiguous language is reasonable
because it "comports with the language of the statute,
effectuates the statutory design, establishes a `fair prorating
scheme,' enables inmates to calculate the time they must serve
with reasonable certainty, and prevents certain inmates from
earning [good conduct time] for time during which they were not
incarcerated." O'Donald, 402 F.3d at 174 (citing
Pacheco-Camacho, 272 F.3d at 1270-71). Accepting Petitioner's
reading of the statute would "entitle an inmate to receive credit
for good conduct in prison for time perhaps several years of
time that he was not in prison." White, 390 F.3d at 1002. This Court will follow the Eighth Circuit's unpublished
decisions in James and Wittman, which represent the clear
majority view, and will, therefore, afford full deference to the
BOP's interpretation of § 3624(b) and dismiss Petitioner's claim
that the BOP is miscalculating his good conduct time credits.
Petitioner asks the Court to hold his petition in abeyance
pending the Eighth Circuit's decision in Patel v. Jeter, No.
05-2652. Patel, like James and Wittman, involves the same
issue as presented here regarding calculation of good conduct
time. However, the Eighth Circuit's docket sheet for Patel,
accessed electronically, shows that appointed counsel for the
petitioner there has recently moved for leave to withdraw and
tendered a brief pursuant to Anders v. California,
366 U.S. 738, 744 (1967) (where counsel finds a case to be "wholly
frivolous," he must so advise the court, request permission to
withdraw, and tender a brief "referring to anything in the record
that might arguably support the appeal"). In light of the Eighth
Circuit's two unpublished per curiam opinions rejecting
Petitioner's position, the Court does not find sufficient
justification to hold this ruling in abeyance pending the
appellate ruling in Patel.
Accordingly, this 28 U.S.C. § 2241 petition for writ of habeas
corpus is hereby DISMISSED in its entirety with prejudice.
Petitioner's motion to hold a ruling in abeyance (docket entry
#8) is DENIED.
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