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Ricardo Molina v. P. Kelly Archie B. Longley

July 6, 2012

RICARDO MOLINA, PETITIONER
v.
P. KELLY ARCHIE B. LONGLEY, WARDEN, RESPONDENT



The opinion of the court was delivered by: Magistrate Judge Maureen

MEMORANDUM OPINION

Ricardo Molina ("Petitioner"), a federal prisoner, has filed a Petition for Writ of Habeas Corpus or Mandamus pursuant to 28 U.S.C. § 2241 (the "Petition"). By means of the Petition, he seeks to challenge action by the Bureau of Prisons (ABOP@) in changing his status from earning 54 days of Good Conduct Time (AGCT@) credit per year of sentence served and relegating him to a status whereby he may only earn 42 days of GCT credit per year of his sentence served, ECF No. 1. The BOP took this action because Petitioner withdrew from a voluntary General Educational Development ("GED") program in which participation is required as a condition to being able to earn the 54 days of GCT. Because Petitioner has not demonstrated that any statute, regulation or BOP Policy Statement requires that he be granted 54 days of GCT per year and because he has not demonstrated that the BOP policy, requiring that he participate in the GED program as a condition to earning 54 days of GCT, violates any federal law, the Petition should be denied.

I. RELEVANT FACTUAL AND PROCEDURAL HISTORY

The following facts are taken mostly from the Respondent's Response to Petition for Writ of Habeas Corpus (the "Answer"), ECF No. 13. On March 7, 2002, Petitioner was sentenced by the United States District Court for the Eastern District of New York to a term of imprisonment of 156 months, for criminal offense conduct that concluded in October 2000 (Conspiracy to Commit Assault in Furtherance of Racketeering Activity, and Accessory After the Fact to an Assault with a Dangerous weapon, in violation of 18 U.S.C. §§ 1959(a)(6) and 1959(a)(3)).

On September 8, 2002, Petitioner enrolled in the Spanish GED class at the Federal Correctional Institution ("FCI"), Three Rivers, Texas. On March 26, 2003, Petitioner was given the Educational Assignment of GED SATISFACTORY upon completion of 240 hours in the Spanish GED program. See BOP Program Statement 5350.28, Literacy Program (GED Standard), ECF No. 13-2 at 2 to 22. Petitioner remained in the Spanish GED program after attaining 240 educational credit hours.

On January 6, 2004, Petitioner was transferred to the low security Federal Correctional Institution in Allenwood, Pennsylvania ("FCI Allenwood"). On March 1, 2004, he was placed in the GED program at FCI Allenwood. On March 2, 2004, Petitioner voluntarily withdrew from the GED class at FCI Allenwood. Prior to withdrawing from the class, he advised education staff of his intent to withdraw. Education staff counseled him on the consequences of withdrawing from the class prior to earning a GED certificate and encouraged him to remain in the GED/Literacy program. Petitioner was specifically counseled that among the consequences of withdrawal was the status change from "GED SAT" (i.e., GED satisfactory) to "GED UNSAT" (i.e., GED unsatisfactory). As an inmate in GED UNSAT status, he would be eligible to receive a maximum of 42 days GCT per year served, as opposed to 54 days GCT that inmates in GED SAT status could earn. After he was counseled by staff, he signed a GED Program Withdrawal/Refusal form, reflecting that he had voluntarily withdrawn from the classes and understood his withdrawal from classes would result in a status change from GED SAT to GED UNSAT status and a reduction in the amount of GCT he would be eligible to earn. ECF No. 13-5 at 5. Petitioner has been in GED Unsatisfactory status since March 2, 2004. He will remain in GED Unsatisfactory status until he re-enrolls in Literacy and/or GED classes and completes an additional 240 credit hours.

In September 2005, Petitioner was transferred to his current prison, the Federal Correctional Institution at McKean ("FCI McKean"), which is located within this judicial district. ECF No. 13-3 at 6. To date, Petitioner has not been subjected to disciplinary action due to his refusal to participate in the GED/Literacy classes. In addition, since his March 2, 2004 withdrawal from the GED class, he has not enrolled in any other Literacy Program class. He also has not passed the GED examination, and he has not provided FCI McKean with verifiable proof that he earned a high school diploma.*fn1

After exhausting his administrative remedies in the BOP, Petitioner filed the Petition.*fn2

ECF No. 5. The Respondent filed his Response. ECF No. 13. Petitioner also filed a Traverse. ECF No. 15. Petitioner then filed a Motion for Writ of Mandamus ("Mandamus Petition") and Motion to Take Judicial Notice. ECF Nos. 16 and 17. The Court ordered Respondent to file a response to the Motions. Respondent filed a Response. ECF No. 18. The Court entered an order denying both. ECF No. 19. Both parties have consented to have the Magistrate Judge exercise plenary jurisdiction. ECF Nos. 7, 9. The case was subsequently transferred to the undersigned. ECF No. 14.

II. DISCUSSION

A.BOP HAS TWO GED PROGRAMS.

As explained by several courts and the Respondent in the Answer and the Response to Petitioner's Mandamus Motion and Motion to Take Judicial Notice, the BOP has, in effect, two GED programs, one mandatory and the other non-mandatory.

The mandatory GED program is based upon 18 U.S.C. § 3624(f) and 28 C.F.R. § 544.70. This mandatory GED program requires all prisoners who are not functionally literate to be enrolled in a literacy program. Furthermore, the BOP requires, by a regulation relative to the mandatory program, that all participants attend 240 instructional hours of literacy training or attend such instruction until a GED is obtained, whichever comes first. 28 C.F.R. ' 544.70. Sentenced deportable aliens, such as Petitioner, are exempt from this mandatory program. 28 C.F.R. ' 544.71(a)(3). For all those who are not exempt from this mandatory program, failure to participate in it and complete it may subject the refusing prisoner to disciplinary sanctions. 28 C.F.R. ' 544.71.

There is also a second GED program that is not mandatory but voluntary and that provides an incentive to participate. This non-mandatory incentive program is found in 18 U.S.C. ' 3624(b)(1) and essentially provides that all inmates serving longer than a one year sentence (other than a life sentence) may receive up to 54 days of GCT if they are making satisfactory progress toward earning a high school diploma or its equivalency. The BOP also instituted regulations to implement this non-mandatory program. See, e.g., 28 C.F.R. ' 523.20(c) (awarding up to 54 days of GCT to those participating in the voluntary program and who are making ...


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