1 This action was initially filed in the United States District Court for Northern

District of Florida, Panama City Division, which in turn transferred it to this court on July 6,

2005. Ramirez v. Van Buren, 5:04cv263 (N.D. Fla, Filed on Sept. 22, 2004). 

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

GENEVIEVE RAMIREZ, #04892-017, )

Petitioner, )

)

v. ) 3:05-CV-1393-N

)

VAN BUREN, Warden, )

Respondent. )

FINDINGS, CONCLUSIONS AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

Pursuant to the provisions of 28 U.S.C. § 636(b), and an order of the court in

implementation thereof, this case has been referred to the United States Magistrate Judge. The

findings, conclusions and recommendation of the Magistrate Judge, as evidenced by his

signature thereto, are as follows:

FINDINGS AND CONCLUSIONS:

Type of Case: This is a petition for a writ of habeas corpus brought by a federal prisoner

pursuant to 28 U.S.C. § 2241.1

Parties: Petitioner is currently confined at the Federal Medical Center (FMC) Carswell in

Fort Worth, Texas. Respondent is the warden at FMC Carswell. The court has not issued

process pending a preliminary screening of the habeas petition.

Statement of Fact: Petitioner was convicted in the Northern District of Florida,

Pensacola Division, of conspiracy to possess with the intent to distribute more than 1000

 

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2 Federal prisoners must exhaust administrative remedies before seeking habeas

relief in federal court under 28 U.S.C. § 2241. Fuller v. Rich, 11 F.3d 61, 62 (5th Cir. 1994).

Exceptions to the exhaustion requirement apply only in "extraordinary circumstances" when

administrative remedies are unavailable or wholly inappropriate to the relief sought, or where the

attempt to exhaust such remedies would itself be a patently futile course of action." Id.

Petitioner concedes she did not fully exhaust her administrative remedies before filing

this action. (Pet. at 3-4). She argues, however, that exhaustion is futile. (Id. at 22). The court

agrees. The Bureau of Prison has adopted a uniform policy to calculate the amount of good time

awarded per year under 18 U.S.C. § 3624(b)(1), expressed in 28 C.F.R. § 523.20. In light of the

BOP’s established policy, it would be patently futile to require Petitioner to continue seeking an

administrative remedy. Thus, the court will review the petition on the merits. See Moreland v.

Federal Bureau of Prisons, 363 F. Supp. 2d 882, 885 (S.D. Tex. 2005).

2

kilograms of marijuana. United States v. Ramirez, 3:00cr49-RV(02) (N.D. Fla.). Punishment

was assessed at twelve years imprisonment on October 31, 2000. (Petition (Pet.) at 2, 8, and 11).

In this action Petitioner challenges the BOP's calculation of good time credits under 18

U.S.C. § 3624(b). (Pet. at 1-2). She seeks credit for an additional seven days of good-time

credits for each year that she will serve for her sentence – namely, the difference between the 47

days of good time credits that she will earn for each year served in prison, and the 54 days she

claims to be entitled to for every year imposed at the time of sentencing. (Pet. at 1-3).2

Findings and Conclusions: The Fifth Circuit recently addressed the challenge to the

method of the BOP’s calculation of good time credits as alleged in this case. See Sample v.

Morrison, 406 F.3d 310, 312-13 (5th Cir. 2005) (per curiam). It concluded that Sample’s claim

was not ripe for judicial review because he was not eligible for release until 2012. “Given the

temporally distant and speculative nature of Sample’s claim, his allegations do not establish that

‘he will sustain immediate injury' and 'that such injury would be redressed by the relief

requested.' " Id. at 312. As a result, the Fifth Circuit dismissed the appeal for lack of subject

matter jurisdiction. Id. 

 

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3 Petitioner relies on Crandon v. United States, 494 U.S. 152, 110 S. Ct. 997, 108

L. Ed. 2d 132 (1990), to argue that the rule of deference does not apply to ambiguous criminal

statutes. (Pet. at 19-21). As the concurring opinion cited by Petitioner demonstrates, Crandon is

easily distinguishable from the case presently before the court. There, Justice Scalia explained

that the Justice Department's interpretation was not entitled to deference because: 

The law in question, a criminal statute, is not administered by any agency but by

the courts. It is entirely reasonable and understandable that federal officials

3

Assuming arguendo that it had subject matter jurisdiction, the Fifth Circuit “disagree[d]

with . . . [the petitioner’s] contention that the ‘plain language’ of 18 U.S.C. § 3624(b)(1) requires

that his good time credit be computed in a manner that would award him ‘54 days’ for each year

of his ‘term of imprisonment’ based on the ‘sentence actually imposed by the sentencing judge.’” 

Id. at 313. The Fifth Circuit then held that the statutory language of § 3624(b) was ambiguous

and, thus, that the BOP’s interpretation thereof was entitled to deference under Chevron U.S.A.,

Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 844, 104 S. Ct. 2778, 2782, 81 L. Ed. 2d

694 (1984). See Sample, 406 F.3d at 313 (agreeing with the holding of White v. Scibana, 390

F.3d 997, 999-1003 (7th Cir. 2004), cert. denied, 125 S.Ct. 2921 (2005); Pacheco-Camacho v.

Hood, 272 F.3d 1266, 1269-71 (9th Cir. 2001), cert. denied, 535 U.S. 1105 (2002)). See also

Perez-Olivio v. Chavez, 394 F.3d 45, 48-54 (1st Cir. 2005).

Just like Sample, Petitioner will not be eligible for release before 2010. (Pet. at 8). 

Therefore, her challenge to the method of the BOP's calculation of good time credits is not ripe

for judicial review and should be dismissed for lack of subject matter jurisdiction. Sample, 406

F.3d at 312-13. Even assuming arguendo that this court would have subject matter jurisdiction,

it concludes that Petitioner’s claim lacks any merit because the BOP's interpretation of 18 U.S.C.

§ 3624(b), as embodied in 28 C.F.R. § 523.20, is reasonable and entitled to deference under

Chevron. Id. at 313.3

 

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should make available to their employees legal advice regarding its interpretation;

and in a general way all agencies of the Government must interpret it in order to

assure that the behavior of their employees is lawful--just as they must interpret

innumerable other civil and criminal provisions in order to operate lawfully; but

that is not the sort of specific responsibility for administering the law that triggers

Chevron. 

Id. at 177, 110 S.Ct. 997. 

Here, of course, the law in question is indisputably administered by the BOP, which is

charged with determining whether each eligible prisoner has earned good time credit within a

given year, as well as the amount of credit that the prisoner is entitled to receive, and the date on

which the prisoner has served out his sentence. 18 U.S.C. § 3624. This is precisely the "sort of

specific responsibility for administering the law that triggers Chevron." Crandon, 494 U.S. at

177, 110 S. Ct. 997. As such, this court finds Crandon inapplicable to the case at hand. See

Sash v. Zenk, 344 F. Supp. 2d 376, 382 -383 (E.D. N.Y. 2004).

4

RECOMMENDATION: 

For the foregoing reasons it is recommended that the habeas corpus petition be dismissed

for want of jurisdiction or in the alternative that relief be denied

A copy of this recommendation will be mailed to Petitioner.

Signed this 10th day of August, 2005.

____________________________________

WM. F. SANDERSON, JR.

UNITED STATES MAGISTRATE JUDGE

NOTICE

In the event that you wish to object to this recommendation, you are hereby notified that

you must file your written objections within ten days after being served with a copy of this

recommendation. Pursuant to Douglass v. United Servs. Auto Ass'n, 79 F.3d 1415 (5th Cir.

1996) (en banc), a party's failure to file written objections to these proposed findings of fact and

conclusions of law within such ten-day period may bar a de novo determination by the district

judge of any finding of fact or conclusion of law and shall bar such party, except upon grounds

of plain error, from attacking on appeal the unobjected to proposed findings of fact and

conclusions of law accepted by the district court.

 

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