The opinion of the court was delivered by: Judge Munley
Before the court for disposition are Petitioner Scottie Hurst's objections (Doc. 13) to Magistrate Judge Martin C. Carlson's report and recommendation (Doc. 11) which proposes that the petition for a writ of habeas corpus (Doc. 1) be denied and that a certificate of appealability should not issue. See 28 U.S.C. § 2253(c) and 3d Cir. LAR 22.
On March 27, 1997 Hurst was charged in Cumberland County,
Tennessee, with Destruction of County Property, Evading Arrest, Possession of Drug Paraphernalia, Possession of a Handgun, and Simple Possession of Marijuana. (Doc. 9, Ex. 1, Liotti Decl., ¶ 3). One week later, on April 3, 1997, Hurst was sentenced on these state charges, and was transferred to Fentress County, Tennessee, (Doc. 9, Ex. 1, ¶ 4),where he was sentenced on September 12, 1997, to three years imprisonment on other state offenses, a sentence that was ordered to run concurrently with Hurst's cases in Cumberland County, and any federal charges. (Doc. 9, Ex. 1, ¶ 5). Three months later, on December 22, 1997, Hurst was brought into federal custody pursuant to a federal writ, to face federal firearms, theft and trafficking charges. At the same time, Hurst was sought by state authorities in Knox County, Tennessee, where he was wanted on another serious charge, Aggravated Assault/Vandalism. (Ex. 1, ¶¶ 6-7; Attach. 2, USMS Individual Custody and Detention Report, 2). Ultimately, both of these charges also resulted in convictions. Thus, on September 23, 1998, Hurst was sentenced to a three-year term of imprisonment by the Knox County Criminal Court. (Doc. 9, Ex. 1, ¶ 8; Attach. 3, J. of Knox Co. Crim. Ct.).
Three months later, on December 11, 1998, Hurst was sentenced in the United States District Court for the Eastern District of Tennessee to a 288-month term of imprisonment for Conspiracy to Transport and Possess Stolen Firearms and Ammunition in Interstate Commerce in violation of Title 18 U.S.C. § 371, Possession of Stolen Firearms and Ammunition in Interstate Commerce in violation of Title 18 U.S.C. § 922(j), Aiding and Abetting in the Transportation of Stolen Firearms in Interstate Commerce in violation of Title 18 U.S.C. § 922(I), and Convicted Felon in Possession of Firearm in violation of Title 18 U.S.C. § 922(g)(1). (Doc. 9, Ex. 1, ¶ 9; Attach. 4, J. in a Crim. Case, E.D. Tenn. No. 3:97CR00151-001). This sentence was ordered to run concurrently with the sentence imposed against Hurst in Fentress County, Tennessee. (Id).
Once Hurst completed service of his pre-existing state sentences, on July 6, 2004, he was paroled from his state charges and immediately remanded to federal custody to complete service of his federal sentence. (Doc.9, Ex. 1, ¶ 10; Attach. 2, 2).
On March 8, 2007, Hurst was convicted and sentenced in the United States District Court for the Eastern District of Kentucky to a 42-month consecutive term for Assaulting a Prison Official in violation of Title 18 U.S.C. § 111(a)(1). (Doc. 9, Ex. 1, ¶ 11; Attach. 5, J. in a Crim. Case, E.D. Ky. No. 6:06-CR-124-01-KKC). Thus, as a result of this prison assault conviction, by 2007 Hurst faced aggregate federal sentences totaling 330 months in prison.
In addition, the Bureau of Prisons ("BOP") has documented the following pattern of disciplinary proceedings relating to Hurst over the past seven years: first, between June 14, 2004, and June 13, 2005, Hurst was sanctioned by the Disciplinary Hearing Officer ("DHO") to a total disallowance of 246 days of good time. The following year, from June 14, 2005, through June 13, 2006, Hurst was sanctioned by the DHO to a total disallowance of an additional 215 days of good time. During his third year in federal custody, from June 14, 2006, through June 13, 2007, Hurst accrued additional institutional infractions and was sanctioned by the DHO to a total disallowance of 68 days of good time. The following year, from June 14, 2007, through June 13, 2008, Hurst engaged in further misconduct and was sanctioned by the DHO to a total disallowance of 204 days of good time. Despite the imposition of these penalties, the following year, June 14, 2008, through June 13, 2009, Hurst was sanctioned again by the DHO to a total disallowance of 121 days of good time. During the most recently competed twelve month period, from June 14, 2009, through June 13, 2010, Hurst was further sanctioned by the DHO to a total disallowance of 229 days of good time. Finally, since June 14, 2010, Hurst has received an additional sanction by the DHO, the total disallowance of 81 days of good time credit. (Doc. 9, Ex. 1, ¶¶ 13-20; Attach. 9, Sentence Monitoring Good Time Data).
Thus, in total, Hurst has been sanctioned by DHOs to the disallowance of good time credits totaling 1,166 days as a result of these institutional misdeeds on his part. (Doc. 9, Ex. 1, ¶ 22). Despite these proposed penalties, significantly fewer good-time credits have actually been stripped from Hurst than the 1,166 days. The reason that the actual sanctions imposed upon Hurst have been different, and less, than that recommended by the various prison Disciplinary Hearing Officers has been that the discretion of prison officials to deny inmates like Hurst good time credit is prescribed and limited both by statute and by BOP policy, as we explain below.
Thus, the BOP reports that it began calculating Hurst's accrual of good time credit from 1997-1998, the period when Hurst first came into federal custody. (Doc. 9, Ex. 1 attach. 9). While Hurst was credited with accruing good time beginning in 1997-1998, once he actually came into federal custody in 2004 he forfeited all of that accrued good time due to his repeated violations of prison rules. Hurst also lost through disallowance the good time which he could have earned from 2004 to the present through his repeated misdeeds. Thus, between 2004 and the present a total of 378 days of good time were disallowed by prison; that is, withheld for the current year in which some prison infraction occurred. (Id.) Furthermore, prison officials also forfeited an additional 378 days of good time that had accrued to Hurst for the period from 1997 through 2004; that is, they denied this good conduct time which the inmate had earned in these past years, due to his continued misconduct. This total disallowance and forfeiture of good time amounted to the loss of 756 days of good time.*fn2
Hurst filed a petition for a writ of habeas corpus on September 7, 2010, challenging the BOP's disallowance and forfeiture of his good time credits. (Doc. 1). Respondent Warden B. A. Bledsoe filed his response on November 5, 2010. (Doc. 9). On November 23, 2010, Magistrate Judge Martin C. Carlson issued a report and recommendation (Doc. 11) which proposes that the petition for a writ of habeas corpus be denied. On December 15, 2010, we adopted the report and recommendation and denied the petition for a writ of habeas corpus, having received no objections within the prescribed time period. (Doc. 12). On December 17, 2010, the court received Hurst's objections and the case was reopened for an evaluation of the merits. (Docs. 13, 14).
Because this case is brought under 28 U.S.C. §§ 2241, the court has jurisdiction pursuant to 28 U.S.C. § 1331. ("The district courts shall have original jurisdiction of all civil actions arising under the ...