UNITED STATES DISTRICT COURT FOR THE

MIDDLE DISTRICT OF PENNSYLVANIA

TAVARES KEITH FINCHAM, :

:

Petitioner : No. 4:CV-05-1835

:

vs. : (Petition Filed 9/12/05) 

:

THE FEDERAL BUREAU OF PRISONS, : (Judge Muir)

:

Respondent :

ORDER

October 4, 2005

Tavares Keith Fincham, an inmate presently confined in the

Federal Prison Camp, Lewisburg, Pennsylvania, filed pro se, a

petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241.

He challenges the Bureau of Prisons’ (BOP) calculation of his

good conduct time credits. (Doc. No. 1). The petition has been

given preliminary consideration pursuant to Rue 4 of the Rules

Governing Section 2254 Cases in the United States District

Courts, 28 U.S.C. foll. § 2254 (1977)(In applications for habeas

corpus cases not covered by Rule 1, subdivision (a), which

addresses application under 28 U.S.C. §2254, subdivision (b)

provides that the rules may be applied at the discretion of the

United States district court), as it is the duty of the Court to

screen out frivolous applications and eliminate the burden that

would be placed on the respondent by ordering an unnecessary

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1Rule 4 provides in relevant part:

The Clerk must promptly forward the

petition to a judge under the court’s

assignment procedure, and the judge

must promptly examine it. If it

plainly appears from the petition and

any attached exhibits that the

petitioner is not entitled to relief

in the district court, the judge must

dismiss the petition and direct the

clerk to notify the Petitioner. 

2

answer. Allen vs. Perini, 424 F.2d 134, 141 (6th Cir. 1970).1

For the reasons outlined below, the petition will be denied.

Background

On January 9, 1998, the petitioner was convicted by a jury

in the United States District Court for the Eastern District of

Virginia, of conspiracy to distribute 50 grams or more of

cocaine base and distribution of 5 grams or more of cocaine

base, in violation of 21 U.S.C. §§ 841(A)(1) and 846. (Doc. No.

1, petition). He was sentenced to one hundred twenty-one (121)

months imprisonment and sixty (60) months probation. Id. As

noted above, Fincham is challenging the BOP’s calculation of his

good conduct time credits. He correctly states that “18 U.S.C.

§ 3624(b) provides that a prisoner who is serving a term of

imprisonment of more than 1 year . . . may receive credit

towards the service of the prisoner’s sentence . . . of up to

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3

54 days at the end of each year of the prisoner’s term

imprisonment.” (Doc. No. 1, p. 4). However, he argues that the

BOP’s interpretation of the statute is contrary to the intent of

Congress that prisoners are eligible to earn 54 days for each

year of imprisonment in that, under the BOP’s policy, the

maximum allowable total time credit that can be awarded to a

prisoner sentenced to a year and a day is approximately 47 days

because the BOP bases its calculations on the actual time in

prison, rather than the sentence imposed. (Doc. 1, pp. 4-8).

Discussion

The statutory authority for awarding good conduct time to

federal prisoners is as follows:

A prisoner who is serving a term of

imprisonment of more than 1 year other than a

term of imprisonment for the duration of the

prisoner’s life, may receive credit toward the

service of the prisoner’s sentence, beyond the

time served, of up to 54 days at the end of

each year of the prisoner’s term of

imprisonment, beginning at the end of the first

year of the term, subject to determination by

the Bureau of Prisons that, during that year,

the prisoner has displayed exemplary compliance

with institutional disciplinary regulations. 

18 U.S.C. § 3624 (emphasis added).

The BOP has promulgated a rule reflecting its interpretation

of the good time credit statute: “an inmate earns 54 days toward

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4

service of sentence (good conduct time credit) for each year

served.” 28 C.F.R. § 523.20 (emphasis added). The BOP has also

issued, as part of his Sentence Computation Manual, Program

Statement 5880.28 which provides that “54 days of GCT may be

earned for each full year served on a sentence in excess of one

year, with the GCT being prorated for the last partial year.”

The BOP requires an inmate to satisfactorily complete a year of

service prior to the award of GCT credit. GCT credit is not

bestowed in advance of service, it is awarded only after it is

earned. The BOP has interpreted the statute to require the

award of 54 days of GCT be subtracted from the remainder of the

term to be served, not from the year already served that merited

the GCT. 

Fincham claims that the BOP's interpretation of the phrase

“term of imprisonment” in section 3624(b) is erroneous, and that

the phrase refers to the prisoner's sentence, rather than the

time served. He claims that the phrase “term of imprisonment”

is unambiguous and that pursuant to Chevron U.S.A., Inc. vs.

Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), no

deference is to be given to the BOP's interpretation of §

3624(b). 

This issue was very recently addressed by the Court of

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Appeals for this circuit, and it rejected the position advanced

by Ramirez-Ramiro. See O'Donald vs. Johns, 402 F.3d 172 (3d

Cir. 2005). In O'Donald, the Third Circuit concluded that the

BOP's interpretation of § 3624(b) is reasonable, and thus

entitled to deference. O'Donald,402 F.3d at 174. This position

is consistent with that taken by the First, Sixth, Seventh and

Ninth Circuit Courts of Appeals, which have also concluded that

the BOP’s position reflects a reasonable interpretation of 18

U.S.C. § 3624(b). See Perez-Olivio vs. Chavez, 394 F.3d 45, 49

(1st Cir. 2005); White vs. Scibana, 390 F.3d 997 (7th Cir. 2004);

Pacheco-Comancho vs. Hood, 272 F.3d 1266 (9th Cir. 2001); Brown

vs. Hemingway, 53 Fed. Appx. 338, 339 (6th Cir. 2002)(unpublished

decision). Several judges of this court, including the

undersigned, have also addressed the issue and found the BOP’s

interpretation to be reasonable. See Primrose vs. Holt, Civil

No. 1:CV-04-2717 (M.D. Pa. March 24, 2005)(Caldwell, J.);

Germany vs. Smith, Civil No. 3:CV-04-2560, 2005 WL 428585, at *1

(M.D. Pa. Feb. 23, 2005)(Vanaskie, C.J.); Gilbert vs. Smith,

Civil No. 3:CV-05-0251 (M.D. Pa. Feb. 15, 2005)(Nealon, J.);

Hines vs. Nash, Civil No. 3:CV-04-2748 (M.D.Pa. Dec. 27,

2004)(Munley, J.); Mendez-Soto vs. Apker, Civil No. 3:CV-04-

2566, (M.D.Pa. Dec. 16, 2004) (Conaboy, J.); Lopez vs.

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Williamson, Civil No. 4:CV-04-2390 (M.D.Pa. Dec. 14, 2004)

(Jones, J.); Baldwin vs. Angeline, Civil No. 3:CV-03-1144

(M.D.Pa. Jan. 28, 2004) (Caputo, J.). Accordingly, in light of

O'Donald, the habeas corpus petition will be denied. 

IT IS HEREBY ORDERED THAT:

1. The petition for writ of habeas corpus(Doc.

No. 1) is DENIED.

3. The Clerk of Court is directed to CLOSE this case.

 s/Malcolm Muir

 

MUIR

United States District Judge

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