United States District Court, D. New Jersey
September 21, 2005.
GILBERTO PINTO, Petitioner,
C.J. DeROSA, Respondent.
The opinion of the court was delivered by: JEROME SIMANDLE, District Judge
Petitioner Gilberto Pinto, a prisoner previously confined at
the Federal Correctional Institution at Fort Dix, New Jersey, has
submitted a petition for a writ of habeas corpus pursuant to
28 U.S.C. § 2241.*fn1 I. BACKGROUND
On March 20, 1987, Petitioner was sentenced in the United
States District Court for the Eastern District of New York, to
the following terms of imprisonment: (1) on Count One, for
conspiracy to possess with intent to distribute cocaine, in
violation of 21 U.S.C. § 846, a term of 20 years incarceration;
and (2) on Counts Two, Three, and Four, for possession of cocaine
entering the United States onboard a vessel, in violation of
21 U.S.C. § 955, for importation of cocaine, in violation of
21 U.S.C. 952(a), and for possession with intent to distribute
cocaine, in violation of 21 U.S.C. § 841(a)(1), a term of 15
years incarceration, to run consecutive to the term of 20 years
incarceration imposed for Count One. In addition, Petitioner was
sentenced to another concurrent sentence of four years
incarceration, on Counts 11-13, for use of a telephone to
facilitate distribution of cocaine in violation of
21 U.S.C. § 843(b). Petitioner also was sentenced to a Special Parole term of
life on each of Counts Two through Four. Thus, Petitioner's
aggregate sentence was 35 years incarceration and a Special
Parole term of life.
The Bureau of Prisons awarded Petitioner jail credit for time
served from August 13, 1985, through March 19, 1987. The BOP
calculated Petitioner's initial parole eligibility date as August
13, 1995. After the initial parole hearing, the U.S. Parole Commission
determined in a Notice of Action dated October 31, 1995, that
Petitioner was not suitable for parole release under the criteria
of 18 U.S.C. § 4206(a). The Commission determined that
Petitioner's large-scale cocaine offense merited an offense
severity rating of Category Eight. Petitioner's salient factor
score was 9.
The Commission's parole release guidelines provided for a range
of 100 months to be served before release. See
28 C.F.R. § 2.20 (Table). The Commission determined, however, that Petitioner
should continue to be confined until the expiration of his term.
The Commission regulations require that "[f]or decisions
exceeding the lower limit of the applicable guideline category by
more than 48 months, the Commission will specify the pertinent
case factors upon which it relied in reaching its decision."
28 C.F.R. § 2.20 (Table, Note). The Commission explained its
After review of all relevant factors and information
presented, a decision more than 48 months above the
minimum guideline range is warranted because you were
the principal organizer in a sophisticated drug
trafficking operation that over a two year period was
responsible for the distribution of in excess of 1800
pounds of cocaine, with over 350 kilograms having
been seized, an amount that far exceeds the base
limit quantity for a Category Eight offense.
(Answer, Ex. 2c, Notice of Action, October 31, 1995.) This
decision was affirmed by the National Appeals Board. The Commission has conducted interim hearings as required by
law, ordering no change in its initial decision that Petitioner
serve to the expiration of his sentence. Each such decision has
been affirmed by the National Appeals Board.
The BOP has calculated Petitioner's full term release date as
August 12, 2020, using the entire length of the 35-year sentence.
The BOP has projected Petitioner's mandatory release date, taking
into account earned and anticipated statutory good time credits
and extra good time credits, as November 8, 2005. Petitioner
disputes the calculation of his mandatory release date, and has
exhausted his administrative remedies with respect to that
In this Petition, Petitioner asserts that:
The Bureau of Prisons and the U.S. Parole commission
violated Title 18 U.S.C. § 4205(a) [parole eligibility], Title 18 U.S.C. § 4161 [good time
credits], after petitioner's have been denied his
right to be on parole on his aggregated 35 years
(Petition, Ground One.) Respondent has answered that the
Commission denied parole in compliance with applicable
regulations and law and that Petitioner's sentence was properly
calculated. Although this Court granted Petitioner leave to file
a reply in support of the Petition, he has not filed a reply.
This matter is now ready for disposition.
A pro se pleading is held to less stringent standards than more
formal pleadings drafted by lawyers. Estelle v. Gamble,
429 U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520
(1972). A pro se habeas petition and any supporting submissions
must be construed liberally and with a measure of tolerance.
See Royce v. Hahn, 151 F.3d 116, 118 (3d Cir. 1998); Lewis
v. Attorney General, 878 F.2d 714, 721-22 (3d Cir. 1989);
United States v. Brierley, 414 F.2d 552, 555 (3d Cir. 1969),
cert. denied, 399 U.S. 912 (1970).
A. The Denial of Parole
Pursuant to 18 U.S.C. § 4205(a),*fn3 "a prisoner shall be
eligible for release on parole . . . after serving ten years of .
. . a sentence of over thirty years. . . ." Thus, Petitioner became
eligible for parole on August 13, 1995, after serving ten years
on his 35-year sentence. The Parole Commission timely considered
Petitioner for parole.
Petitioner appears, however, to misunderstand the meaning of
parole eligibility. Petitioner does not assert any procedural
deficiency in his hearing, or any deficiency in the factual basis
for the denial of parole, see, Gambino v. Morris,
134 F.3d 156 (3d Cir. 1998) (citing Zannino v. Arnold, 531 F.2d 687, 691
(3d Cir. 1976)). Instead, Petitioner appears to base his
challenge to the denial of parole on the theory that he is
absolutely entitled to parole after serving ten years. To be
eligible for parole, however, is not to be entitled to parole.
See Petri v. Warden, 507 F.Supp. 5 (M.D. Pa. 1980), aff'd,
636 F.2d 1210 (3d Cir. 1980).
Here, the applicable parole guidelines range contained no upper
limit, see Madonna v. U.S. Parole Commission, 900 F.2d 24 (3d
Cir. 1990), the Commission specified the factors causing it to
render a decision more than 48 months above the guidelines
100-month minimum, and Petitioner does not dispute the accuracy
of the factual basis for the Commission's decision. Petitioner's
challenge to the denial of parole is without merit.
B. The Calculation of Petitioner's Sentence Title 18 Section 4161 governs the calculation of good time
credits for prisoners, such as Petitioner, who committed their
offenses prior to November 1, 1987.*fn4
Each prisoner convicted of an offense against the
United States and confined in a penal or correctional
institution for a definite term other than for life,
whose record of conduct shows that he has faithfully
observed all the rules and has not been subjected to
punishment, shall be entitled to a deduction from the
term of his sentence beginning with the day on which
the sentence commences to run, as follows:
. . .
Ten days for each month, if the sentence is ten years
When two or more consecutive sentences are to be
served, the aggregate of the several sentences shall
be the basis upon which the deduction shall be
18 U.S.C. § 4161 (repealed).
Although Petitioner refers to § 4161 in the Petition, in his
Brief in Support of the Petition, he states that the BOP
miscalculated his sentence because he should be released after
serving twenty years, based upon the "stacking" he alleges should
occur with respect to the alleged separate ten-year parole
ineligibility term for each of his two consecutive sentences.
(Petitioner's Brief at 6.) This Court already has disposed of the argument that Petitioner
has an entitlement, rather than an eligibility, to parole after
ten years of serving his sentence. Moreover, with consecutive
sentences, the ineligibility periods are not stacked; rather,
there is one ten-year parole ineligibility period for the entire
aggregate sentence. See BOP Program Statement 5880.30, Sentence
Computation Manual/Old Law/Pre-CCA 1984, Chapter VII, Page 19.
With respect to the calculation of good time credits under §
4161, Respondent has attached to his Answer the Declaration of
Maribel Hernandez, an Assistant Inmate Systems Manager at the
Federal Correctional Institution at Fort Dix. Hernandez explains
that Petitioner's sentence expiration full-term date is August
12, 2020, which is 35 years after his sentence began, taking into
account the jail credit Petitioner received for time spent in
federal custody prior to the commencement of his federal
sentence. From that date, the BOP has subtracted a total of 1104
anticipated days of Extra Good Time and 4200 anticipated days of
Statutory Good Time, under § 4161, at a rate of 10 days per month
of the 420 months of his sentence, for an anticipated mandatory
release date of November 8, 2005.
Petitioner has pointed to no error in this calculation, and
this Court can discern none. Accordingly, there is no merit to
Petitioner's challenge to the calculation of his release date. IV. CONCLUSION
For the reasons set forth above, the Petition must be denied.
An appropriate order follows.
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