The opinion of the court was delivered by: JAMES McCLURE, Senior District Judge
Jerome D. Brown ("Petitioner"), an inmate presently confined at
the Canaan United States Penitentiary, Waymart, Pennsylvania
("USP-Canaan"), initiated this pro se petition for writ of
habeas corpus pursuant to 28 U.S.C. § 2241. USP-Canaan Warden
Cameron Lindsey is named as sole Respondent.
Brown states that on May 10, 2004, he was sentenced in the
United States District Court for the Western District of Virginia
to a 151 month term of incarceration. He adds that he has been in
custody in connection with his federal conviction since May 22,
2003. Petitioner correctly notes that since he has been sentenced to
a term of imprisonment which exceeds one (1) year, he is eligible
for an award of good conduct time ("GCT") under
18 U.S.C. § 3624(b). See Record document no. 1, ¶ 5.1. His petition
contends that the Federal Bureau of Prisons ("BOP") improperly
bases its § 3624(b)calculation "on the actual time in prison
rather than the sentence imposed." Id. at ¶ 4.4.
His petition claims that he should be entitled to fifty-four
(54) days of GCT for every year of the actual sentence imposed.
However, as a result of the BOP's erroneous calculation method of
awarding GCT based on the amount of time actually served, Brown
asserts that he can only be credited with 592 days of GCT as
opposed to the correct amount of 679 days. See id. at ¶ 4.6.
Petitioner concludes that the purportedly improper calculation
method presently employed by the BOP violates the Equal
Protection and Due Process Clauses of the Fifth Amendment.
Habeas corpus petitions brought under § 2241 are subject to
summary dismissal pursuant to Rule 4 ("Preliminary Consideration
by the Judge") of the Rules Governing Section 2254 Cases in the
United States District Courts, 28 U.S.C. foll. § 2254 (1977)
(applicable to § 2241 petitions under Rule 1(b)). See, e.g., Patton v. Fenton, 491 F. Supp. 156, 158-59 (M.D. Pa.
1979). Rule 4 provides in pertinent part: "If it plainly appears
from the face of the petition and any exhibits annexed to it that
the petitioner is not entitled to relief in the district court,
the judge shall make an order for its summary dismissal and cause
the petitioner to be notified." A petition may be dismissed
without review of an answer "when the petition is frivolous, or
obviously lacking in merit, or where . . . the necessary facts
can be determined from the petition itself. . . ." Allen v.
Perini, 424 F.2d 134, 141 (6th Cir.), cert. denied,
400 U.S. 906 (1970). Accord Love v. Butler, 952 F.2d 10, 15 (1st Cir.
18 U.S.C. § 3624(b) provides:
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
The BOP's interpretation of this statute appears in Program
Statement 5880.28 which states that 54 days of GCT may be earned
for each full year served on a sentence in excess of 1 year with
the GCT being prorated for the last partial year. The BOP then
subtracts 54 days of GCT from the remainder of the term to be served, not from the year already served. Pursuant to this method
of calculation, GCT is awarded only after it is earned by a
It is initially noted that it is the BOP, not courts, which
determines whether federal inmates should receive good time
credits. United States v. Evans, 1 F.3d 654 (7th Cir.
1993). A federal sentence commences when the defendant is
received by the Attorney General of the United States for service
of his federal sentence. Chambers v. Holland, 920 F. Supp. 618,
621 (M.D. Pa.), aff'd, 100 F.3d 946 (3d Cir. 1996).
In support of his miscalculation argument, the Petitioner
asserts that under Bifulco v. United States, 447 U.S. 381, 387
(1980), the BOP's interpretation should not be given deference
because the rule of lenity must be used in construing an
ambiguous penal statute. See Record document no. 1, ¶ 5.4.
At least four other Judges of this district have reached
contrary conclusions. In Baldwin v. Angeline, No. 3:CV-03-1144,
slip op. at 13 (M.D. Pa. Jan. 28, 2004) (Caputo, J.), Judge
Caputo of this Court citing Pacheco-Camancho v. Hood,
272 F. 3d 1266 (9th 2001), cert. denied, 535 U.S. 1105 (2002), concluded
that "the BOP's interpretation is a reasonable interpretation of
28 U.S.C. § 3624(b)." Chief Judge Vanaskie and Judges Jones and
Conaboy of this Court reached similar determinations. See Hill
v. Nash, No. 3:CV-02-1022, slip op. at 3 (M.D. Pa. Jan. 30, 2003) (Vanaskie, C.J.), aff'd, No. 03-1392,
slip op. (3d Cir. Aug. 29, 2003) (per curiam); Lopez v.
Williamson, Civil No. 4:CV-04-2390, slip op. (M.D. Pa. Dec. 14,
2004) (Jones, J.); Robinson v. Nash, Civil No. 3:CV-04-1585,
slip op. (M.D. Pa. Nov. 8, 2004) (Conaboy, J.).
In Elejalde v. Apker, Civil No. 4:CV-04-2665 slip op. (M.D.
Pa. Dec. 15, 2004), this Court concurred with the approach taken
by Judges Vanaskie, Conaboy, Caputo, and Jones and held "that the
BOP's interpretation of § 3624(b) is `based on a permissible
construction of the statute.'" Id. at p. 6 (citing Chevron
U.S.A. Inc. v. Natural Res. Def. Council, 467 U.S. 837, 843
Recently, the United States Court of Appeals for the Third
Circuit addressed this same issue and likewise concluded that
there was no basis for federal habeas corpus relief. See
O'Donald v. Johns, 402 F.3d 172, 174 (3d Cir. 2005). In
O'Donald, the Third Circuit agreed that the meaning of §
3624(b) was ambiguous but rejected Brown's present argument as
meritless, holding that there was no need to resort "to the rule
of lenity where as here, we can otherwise resolve the ambiguity
of the statute." Id. at 174.
Based on an application of the Third Circuit's recent decision
in O'Donald and the prior decisions cited above to the present
petition, there is no basis for an award of federal habeas corpus
relief. It remains the conclusion of this Court that the BOP's method of computing GCT is neither arbitrary,
capricious nor manifestly contrary to the statute. See
Firstland Int'l v. INS, 377 F.3d 127
, 131 (2d Cir. 2004).
IT IS HEREBY ORDERED THAT:
1. Petitioner is granted temporary leave to proceed
in forma pauperis for the sole purpose of filing
2. The petition for writ of habeas corpus is denied.
3. The Clerk of Court is directed ...