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Riascos v. Sanders

April 19, 2007

LUIS ALBERTO RIASCOS REG, #15686-179 PETITIONER
v.
LINDA SANDERS WARDEN, FCC, FORREST CITY, ARKANSAS RESPONDENT



ORDER

Petitioner, a federal inmate, brings this Petition for Writ of Habeas Corpus under 28 U.S.C. § 2241. Petitioner was housed in the Federal Correctional Complex (FCC), Forrest City, Arkansas, at the time he commenced this matter. He seeks restoration of good conduct time (GCT) and eligibility for 54 days of GCT per year.

BACKGROUND

After a conviction in the Southern District of Texas on June 27, 2002, Petitioner was transferred to the FCC in Forrest City to serve his sentence. Petitioner is a "deportable alien," and he does not possess a high school diploma or General Educational Development (GED) credential. On April 8, 2003, Petitioner began the Spanish Language GED program at the FCC in Forrest City. He continued in the GED program until September 3, 2004, when he voluntarily withdrew.

On April 4, 2004, while still enrolled in the GED program, Petitioner received a disciplinary charge for fighting with another inmate in the program. At the time, Petitioner had earned two hundred eighty (280) hours of credit in the GED program. As a result of the disciplinary charge, Petitioner's status changed from "GED SAT" to "GED UNSAT," meaning Petitioner was no longer making satisfactory progress toward attaining his GED. This status change reduced the amount of GCT that Petitioner was eligible to earn from 54 days per year to 42 days per year. The Bureau of Prisons (BOP) maintains that in order to become "GED SAT," and thus eligible for 54 days of GCT per year, Petitioner must earn an additional two hundred forty (240) credit hours without incident. Petitioner contends that he should be eligible for 54 days of GCT without the necessity of accumulating an additional 240 credit hours, because he is exempt from the GED program and because he already earned the required 240 credit hours.

DISCUSSION

This dispute arises out of the implementation of the BOP Literacy Program found in BOP Program Statement 5350.28 (PS 5350.28). The policy statements themselves are not entitled to Chevron deference. See Christianson v. Harris County, 529 U.S. 576 (2000); United States v. Mead Corp., 533 U.S. 218 (2001). Nonetheless, in this case, PS 5350.28 is a reasonable interpretation of the relevant statutes and regulations.

A prisoner serving a sentence of more than one year may receive up to 54 days of GCT to reduce the total amount of time the prisoner is incarcerated. 18 U.S.C. § 3624(b)(1). Under 18 U.S.C. § 3624(b)(1), a prisoner is required to display exemplary conduct to earn GCT. 18 U.S.C. § 3624(b)(1) also states:

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.

This section functions as an incentive for certain inmates to participate in the BOP Literacy Program that is mandatory for other inmates.

Participation in a functional literacy program is mandatory for all mentally capable inmates who are not functionally literate, and includes mandatory participation in an English-as-a-Second-Language program for non-English speaking inmates. 18 U.S.C. § 3624(f). 18 U.S.C. § 3624(f)(2) provides:

Each mandatory functional literacy program shall include a requirement that each inmate participate in such program for a mandatory period sufficient to provide the inmate with an adequate opportunity to achieve functional literacy, and appropriate incentives which lead to successful completion of such programs shall be developed and implemented.

The "mandatory period" in 18 U.S.C. § 3624(f)(2) is defined by 28 C.F.R. § 544.70, which states:

Except as provided for in § 544.71, an inmate confined in a federal institution who does not have a verified General Educational Development (GED) credential or high school diploma is required to attend an adult literacy program for a minimum of 240 instructional hours or until a GED is achieved, whichever occurs first. 28 C.F.R. § 544.71(a)(3) provides that sentenced deportable aliens are not required to attend the literacy program. This exemption is authorized by 18 U.S.C. § 3624(b)(4), which allows the Director of the BOP to make exemptions to the GED requirement.

Petitioner contends that the BOP should not punish his nonparticipation by reducing his eligibility for GCT from 54 days per year to 42 days per year. Petitioner states that because he is exempt as a deportable alien, and because he completed the mandatory 240 hours, he should be eligible for 54 days of GCT per year. Petitioner's argument fails because the availability of additional GCT is an incentive, not a right. By allowing Petitioner the enhanced GCT due to his exemption, the BOP would be rewarding Petitioner for making satisfactory progress in a program that he freely chose not to participate in. 28 C.F.R. ยง 544.72 states that "the ...


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