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Robert Petrie v. Warden Paul Schultz

January 3, 2011

ROBERT PETRIE, PETITIONER,
v.
WARDEN PAUL SCHULTZ, RESPONDENT.



The opinion of the court was delivered by: Kugler, District Judge

NOT FOR PUBLICATION

OPINION

This matter comes before the Court upon the application of Petitioner Robert Petrie, executed pursuant to 28 U.S.C. § 2241 ("Petition") (docket entry 1). Respondent duly filed an answer ("Answer"), (docket entry 9), and Petitioner filed a Response (docket entry 10). The Court has reviewed all submissions. For the following reasons, the petition will be denied.

BACKGROUND

On January 5, 2001, Petitioner was sentenced in the United States District Court for the Northern District of Florida to a 188-month term of imprisonment, with three years of supervision to follow, for Conspiracy to Commit Money Laundering, in violation of 18 U.S.C. § 1956. His current projected release date is May 11, 2014, assuming he receives all good conduct time available.

The sole issue presented in the petition is a straightforward matter of statutory construction of a provision of the Second Chance Act of 2007 at 42 U.S.C. § 17541(g). Petitioner, an inmate confined at the F.C.I. Fairton (and who, at the time he filed the petition, was 68 years old), challenges the interpretation of the Elderly Offender Home Detention Pilot Program ("Pilot Program") by the Bureau of Prisons ("BOP"), asserting that, under the Pilot Program, he should have been released into home confinement.

DISCUSSION

Petitioner claims that the BOP is incorrectly interpreting and applying 42 U.S.C. § 17541 in relation to eligibility requirements that inmates must satisfy to participate in the Pilot Program, which is part of the Second Chance Act of 2007.

As part of the Second Chance Act of 2007, Congress directed the Attorney General, in coordination with the Director of the BOP, to institute the Pilot Program "to determine the effectiveness of removing eligible elderly offenders from a Bureau of Prisons facility and placing such offenders on home detention" until their term of confinement has expired.*fn1 See 42 U.S.C. § 17541(g) (1)(A).

For purposes of the Pilot Program, an "eligible elderly offender" is defined as an offender who is at least 65 years of age (and is serving a term of imprisonment that is not life imprisonment based on conviction for an offense that does not include any crime of violence, sex offense, or other offenses enumerated in the statute) and who has served the greater of 10 years or 75% of the term of imprisonment imposed at sentencing. See 42 U.S.C. § 17541(g)(5)(A)(i)-(iii).*fn2

The BOP's Operations Memorandum, which provides guidance to BOP staff in interpreting and applying § 17541 and in administering the Pilot Program, states, consistently with the language of § 17541, that "[e]ligibility to participate requires the inmate to have 'served the greater of 10 years or 75 percent of the term of imprisonment to which the offender was sentenced.'" The Operations Memorandum explains that "[s]taff must first determine whether the inmate has served 10 years or more of the term in effect.... If the inmate has not served at least 10 years of the term in effect, s/he is not eligible to participate.... If the inmate has served 10 years or more of the term in effect, staff next determine whether the inmate has served 75% of the term in effect.... If the inmate has served at least 10 years, but not 75%, of the term in effect, s/he is ineligible to participate." See 42 U.S.C. § 17541(g)(5)(A)(ii).

On August 9, 2009, BOP staff reviewed Petitioner, who was 68 years old at the time this petition was filed, for Pilot Program eligibility. At that time, BOP staff mistakenly believed that Petitioner would be eligible for the Pilot Program. Subsequently there was a staffing change, and when Petrie filed an informal resolution form requesting entry into the Program, he was advised that he was ineligible. BOP staff then determined that he did not meet the eligibility criteria for participation because, although he had met the age requirement, he did not serve the greater of 10 years, or more than 75% of his term of imprisonment. In February of 2010, the BOP staff again reviewed Petitioner's eligibility for the Pilot Program, and determined that Petitioner was ineligible because he had not served the greater of ten years or 75% of his sentence because he had only served 112 months of his 188-month sentence, which was neither 10 years nor 75% of his sentence.

Petitioner now argues that the BOP incorrectly interpreted and applied § 17541 in determining the amount of time he must serve on his sentence in order to be eligible for the Pilot Program since, according to Petitioner, the statutory intent of the eligibility language of § 17541 is for an inmate to serve "either" 10 years "or" 75% of his sentence in order to be eligible for participation in the Pilot Program. Additionally, Petitioner argues that good conduct time should be included in calculating the "term of imprisonment" under the statute.

The Court's statutory construction is complete upon identifying plain statutory language ...


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