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UNITED STATES DISTRICT COURT

FOR THE

MIDDLE DISTRICT OF PENNSYLVANIA

JEROME D. BROWN, :

:

Petitioner :

:

v. : CIVIL NO. 4:CV-05-1939

:

CAMERON LINDSEY, : (Judge McClure)

:

Respondent :

MEMORANDUM AND ORDER

September 28, 2005

Background

Jerome D. Brown (“Petitioner”), an inmate presently confined at the Canaan

United States Penitentiary, Waymart, Pennsylvania (“USP-Canaan”), initiated this

pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. USPCanaan Warden Cameron Lindsey is named as sole Respondent. 

Brown states that on May 10, 2004, he was sentenced in the United States

District Court for the Western District of Virginia to a 151 month term of

incarceration. He adds that he has been in custody in connection with his federal

conviction since May 22, 2003. 

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Petitioner correctly notes that since he has been sentenced to a term of

imprisonment which exceeds one (1) year, he is eligible for an award of good

conduct time (“GCT”) under 18 U.S.C. § 3624(b). See Record document no. 1,

¶ 5.1. His petition contends that the Federal Bureau of Prisons (“BOP”)

improperly bases its § 3624(b)calculation “on the actual time in prison rather than

the sentence imposed.” Id. at ¶ 4.4. 

His petition claims that he should be entitled to fifty-four (54) days of GCT

for every year of the actual sentence imposed. However, as a result of the BOP’s

erroneous calculation method of awarding GCT based on the amount of time

actually served, Brown asserts that he can only be credited with 592 days of GCT

as opposed to the correct amount of 679 days. See id. at ¶ 4.6. Petitioner

concludes that the purportedly improper calculation method presently employed

by the BOP violates the Equal Protection and Due Process Clauses of the Fifth

Amendment. 

Discussion

Habeas corpus petitions brought under § 2241 are subject to summary

dismissal pursuant to Rule 4 ("Preliminary Consideration by the Judge") of the

Rules Governing Section 2254 Cases in the United States District Courts, 28

U.S.C. foll. § 2254 (1977) (applicable to § 2241 petitions under Rule 1(b)). See,

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e.g., Patton v. Fenton, 491 F. Supp. 156, 158-59 (M.D. Pa. 1979). Rule 4

provides in pertinent part: "If it plainly appears from the face of the petition and

any exhibits annexed to it that the petitioner is not entitled to relief in the district

court, the judge shall make an order for its summary dismissal and cause the

petitioner to be notified." A petition may be dismissed without review of an

answer "when the petition is frivolous, or obviously lacking in merit, or where . . .

the necessary facts can be determined from the petition itself . . . ." 

Allen v. Perini, 424 F.2d 134, 141 (6th Cir.), cert. denied, 400 U.S. 906 (1970). 

Accord Love v. Butler, 952 F.2d 10, 15 (1st Cir. 1991). 

18 U.S.C. § 3624(b) provides:

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.

The BOP’s interpretation of this statute appears in Program Statement 5880.28

which states that 54 days of GCT may be earned for each full year served on a

sentence in excess of 1 year with the GCT being prorated for the last partial year.

The BOP then subtracts 54 days of GCT from the remainder of the term to be

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served, not from the year already served. Pursuant to this method of calculation,

GCT is awarded only after it is earned by a prisoner.

It is initially noted that it is the BOP, not courts, which determines whether

federal inmates should receive good time credits. United States v. Evans, 1 F.3d

654 (7th Cir. 1993). A federal sentence commences when the defendant is received

by the Attorney General of the United States for service of his federal sentence. 

Chambers v. Holland, 920 F. Supp. 618, 621 (M.D. Pa.), aff’d, 100 F.3d 946 (3d

Cir. 1996). 

In support of his miscalculation argument, the Petitioner asserts that under

Bifulco v. United States, 447 U.S. 381, 387 (1980), the BOP’s interpretation

should not be given deference because the rule of lenity must be used in construing

an ambiguous penal statute. See Record document no. 1, ¶ 5.4.

 At least four other Judges of this district have reached contrary

conclusions. In Baldwin v. Angeline, No. 3:CV-03-1144, slip op. at 13 (M.D. Pa.

Jan. 28, 2004)(Caputo, J.), Judge Caputo of this Court citing Pacheco-Camancho

v. Hood, 272 F. 3d 1266 (9th 2001), cert. denied, 535 U.S. 1105 (2002), concluded

that “the BOP’s interpretation is a reasonable interpretation of 28 U.S.C. §

3624(b).” Chief Judge Vanaskie and Judges Jones and Conaboy of this Court

reached similar determinations. See Hill v. Nash, No. 3:CV-02-1022, slip op. at 3

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(M.D. Pa. Jan. 30, 2003)(Vanaskie, C.J.), aff’d, No. 03-1392, slip op. (3d Cir.

Aug. 29, 2003)(per curiam); Lopez v. Williamson, Civil No. 4:CV-04-2390, slip

op. (M.D. Pa. Dec. 14, 2004)(Jones, J.); Robinson v. Nash, Civil No. 3:CV-0 4-

1585, slip op. (M.D. Pa. Nov. 8, 2004)(Conaboy, J.). 

In Elejalde v. Apker, Civil No. 4:CV-04-2665 slip op. (M.D. Pa. Dec. 15,

2004), this Court concurred with the approach taken by Judges Vanaskie,

Conaboy, Caputo, and Jones and held “that the BOP’s interpretation of § 3624(b)

is ‘based on a permissible construction of the statute.’” Id. at p. 6 (citing Chevron

U.S.A. Inc. v. Natural Res. Def. Council, 467 U.S. 837, 843 (1984)). 

Recently, the United States Court of Appeals for the Third Circuit

addressed this same issue and likewise concluded that there was no basis for

federal habeas corpus relief. See O’Donald v. Johns, 402 F.3d 172, 174 (3d Cir. 

2005). In O’Donald, the Third Circuit agreed that the meaning of § 3624(b) was

ambiguous but rejected Brown’s present argument as meritless, holding that there

was no need to resort “to the rule of lenity where as here, we can otherwise resolve

the ambiguity of the statute.” Id. at 174.

Based on an application of the Third Circuit’s recent decision in O’Donald

and the prior decisions cited above to the present petition, there is no basis for an

award of federal habeas corpus relief. It remains the conclusion of this Court that

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the BOP’s method of computing GCT is neither arbitrary, capricious nor

manifestly contrary to the statute. See Firstland Int’l v. INS, 377 F.3d 127, 131

(2d Cir. 2004). Consequently,

IT IS HEREBY ORDERED THAT:

1. Petitioner is granted temporary leave to proceed in forma

pauperis for the sole purpose of filing this action.

2. The petition for writ of habeas corpus is denied. 

3. The Clerk of Court is directed to close the case.

4. Based on the Court’s conclusion herein, there is no basis for

the issuance of a certificate of appealability.

 s/ James F. McClure, Jr. 

JAMES F. McCLURE, JR.

United States District Judge

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