United States District Court, D. New Jersey
May 2, 2005.
NICHOLAS DELVISCOVO, Petitioner,
CHARLES J. DEROSA, Respondent.
The opinion of the court was delivered by: JEROME SIMANDLE, District Judge
Petitioner Nicholas Delviscovo filed a Petition for a Writ of
Habeas Corpus under 28 U.S.C. § 2241 challenging the calculation
of his good conduct time ("GCT") by the Bureau of Prisons
("BOP"). The BOP filed an Answer and copy of the administrative
record. For the reasons set forth below, the Court dismisses the
Petitioner is currently serving a federal sentence of 210
months imposed by the United States District Court for the
District of New Jersey. According to the BOP, Petitioner is
eligible under 18 U.S.C. § 3624(b) to receive 810 days of GCT,
based on 54 days for each year actually served in prison, rather than 54 days based on the sentence
imposed. See 28 C.F.R. § 523.20. BOP projects Petitioner's
release date as October 20, 2005.
Section 2241 of Title 28 of the United States Code provides in
(c) The writ of habeas corpus shall not extend to a
prisoner unless . . . He is in custody in violation
of the Constitution or laws or treaties of the United
28 U.S.C. § 2241(c)(3).
A federal court has jurisdiction under § 2241(c)(3) if two
requirements are satisfied: (1) the petitioner is "in custody"
and (2) the custody is "in violation of the Constitution or laws
or treaties of the United States." 28 U.S.C. § 2241(c)(3);
Maleng v. Cook, 490 U.S. 488, 490 (1989); 1 James S. Liebman &
Randy Hertz, Federal Habeas Corpus Practice and Procedure § 8.1
(4th ed. 2001). This Court has subject matter jurisdiction over
the Petition because "[s]ection 2241 is the only statute that
confers habeas jurisdiction to hear the petition of a federal
prisoner who is challenging not the validity but the execution of
his sentence." Coady v. Vaughn, 251 F.3d 480, 485-486 (3d Cir.
2001); Gomori v. Arnold, 533 F.2d 871, 874 (3d Cir. 1976).
B. The Merits
In his habeas Petition, Petitioner argues that, by calculating
his GCT based on the time served, as opposed to the sentence
imposed, BOP is depriving him of the opportunity to earn
additional GCT, to which he is statutorily entitled under
18 U.S.C. § 3624(b). Petitioner maintains that § 3624(b) authorizes
him to earn 54 days for each year of the sentence imposed and
that BOP erred by allowing him to earn only 54 days for each year
served. He seeks a writ of habeas corpus directing BOP to recalculate his GCT based on 54
days per year of the sentence imposed. The government argues,
inter alia, that the BOP has correctly computed Petitioner's
GCT, and that its interpretation of 18 U.S.C. § 3624(c) is
entitled to full deference under Chevron, U.S.A., Inc. v.
Natural Res. Def. Council, 467 U.S. 837, 844 (1984).
This case is governed by the Third Circuit's recent decision in
O'Donald v. Johns, 402 F.3d 172 (3d Cir. 2005). Like
Petitioner, O'Donald filed a habeas petition challenging the
BOP's calculation of his GCT based on the time actually served,
rather than the sentence imposed, arguing that the plain language
of 18 U.S.C. § 3624(b) requires BOP to calculate GCT based on the
sentence imposed. The Third Circuit acknowledged that "it is
unclear whether the phrase `term of imprisonment,' as used
several times in § 3624(b), refers to the sentence imposed or
time served." O'Donald at 174. The Third Circuit found that
BOP's interpretation of the statute is reasonable and, because
the statute is ambiguous, the Court deferred to BOB's reasonable
interpretation of the statute. "[W]e agree that the BOP's
interpretation 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 GCT for time during which they were not incarcerated."
Id. (quoting Pacheco-Camacho v. Hood, 272 F.3d 1266, 1270-71
(9th Cir. 2001)). In light of O'Donald, Petitioner's claim is
without merit and this Court will dismiss the Petition. III. CONCLUSION
Based on the foregoing, Petitioner is not entitled to relief
under 28 U.S.C. § 2241 and the Court will dismiss the Petition.
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