instructional hours) of literacy program participation during their confinement.” Resp. Ans., Chabot
Decl. at 3. BOP further states that{2006 U.S. Dist. LEXIS 6} "[i]f an inmate does not earn a GED
credential within 240 instructional hours, the literacy coordinator should strongly encourage the
inmate to continue in the literacy program." As noted, Jeff Toney, BOP's Assistant Supervisor of
Education at FCI Sheridan acknowledges petitioner completed a single period of 240 hours of
instruction in a literacy program while he was confined at FC| Lompoc.

“BOP is without discretion to go beyond the unambiguous terms of its program statement." See Kuna
v. Daniels, 234 F, Supp. 2d 1168, 1169 (D. Or. 2002)("The BOP acted arbitrarily in denying petitioner
eligibility [for good-time credits] and imposing additional eligibility requirements not contained in its
program statements.”). CONCLUSION

The Petition for Writ of Habeas Corpus (doc. # 1) is GRANTED. Petitioner is eligible for good time
credits because he completed a single period of 240 hours of functional literacy instruction in
compliance with BOP's Program Statement.

IT IS SO ORDERED.

DATED this 15 day August, 2006.
/s/ Ancer L. Haggerty

United States District Judge

Footnotes

1

Petitioner's educational history while in custody is provided by Jeff Toney, Assistant Supervisor of
Education af FCI Sheridan.

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ex 4

JAMES MICHAEL SNIDER, Petitioner, v. CHARLES A. DANIELS, Warden, FCI Sheridan, Oregon,
Respondent.
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON
445 F. Supp. 2d 1233; 2006 U.S. Dist. LEXIS 60906
CV-05-1269-HA
August 15, 2006, Decided

Counsel {2006 U.S. Dist. LEXIS 1} For James Michael Snider, also known as,
James Michael Snider, Petitioner: Stephen R. Sady, Office of the Federal Public Defender,
Portland, OR.
For Charles A. Daniels, Warden, FCI Sheridan, Respondent:
Theresa Tolentino Talplacido, United States Department of Justice, Federal Bureau of
Prisons, Seattle, WA; Scott Erik Asphaug, U.S. Attorney's Office, Portland, OR.
Judges: Ancer L. Haggerty, United States District Judge.

CASE SUMMARY .

PROCEDURAL POSTURE: Petitioner federal inmate filed a petition for a writ of habeas corpus under 28
U.S.C.S. § 2241, alleging that the Bureau of Prisons (BOP) arbitrarily and capriciously refused to award
him good time credits pursuant to 18 U.S.C.S. § 3624(b)(1). The inmate argued that the BOP failed to
follow its own rules regarding the award of good time credits resulting from educational attainment.BOP
acted arbitrarily by failing to follow regulations and program statement when BOP refused to award
inmate good time credits under 18 U.S.C.S. § 3624(b)(1), as regulations and statement did not require
inmate to obtain diploma or GED certificate, and he completed 240 hours of instruction in literacy
program while confined at federal prison.

OVERVIEW: The inmate was convicted of drug and firearm offenses and was sentenced pursuant to the
Violent Crime Control and Law Enforcement Act of 1994. The inmate claimed that he met the BOP’s
requirements for eligibility for good time credits by completing 240 hours in a functional literacy program
and obtaining a high school diploma. The court found that the regulations promulgated to implement §
3624(b)(1), including 28 C.F.R. §§ 544.70 and 544.73, and a program statement for the BOP required
only the completion of 240 hours in a functional literacy program. The regulations and program
statement did not require a high schoo! diploma or a GED certificate. It was undisputed that the inmate
completed a single period of 240 hours of instruction in a literacy program while he was confined at a
federal prison. The BOP lacked discretion to go beyond the unambiguous terms of its program
statement. Thus, the BOP acted arbitrarily and capriciously in failing to follow the regulations and the
program statement regarding the inmate's eligibility for good time credits.

OUTCOME: The court granted the habeas petition.

LexisNexis Headnotes
Criminal Law & Procedure > Sentencing > Credits

18 U.S.C.S. § 3624(b)(1) allows the Bureau of Prisons to award annually up to 54 days of credit towards

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the service of a prisoner's sentence if the prisoner has earned, or is making substantial progress toward
earning, a high schoo! diploma or an equivalent degree.

Criminal Law & Procedure > Postconviction Proceedings > Imprisonment
See 28 C.F.R. § 544.70.

Criminal Law & Procedure > Postconviction Proceedings > Imprisonment
See 28 C.F.R. § 544.73(b)(1).

Criminal Law & Procedure > Postconviction Proceedings > Imprisonment
See 28 C.F.R. § 544.73(c).

Administrative Law > Agency Rulemaking > Rule Application & interpretation > Binding Effect
Criminal Law & Procedure > Postconviction Proceedings > Imprisonment

The Bureau of Prisons is without discretion to go beyond the unambiguous terms of its program
statement.

Opinion

Opinion by: Ancer L. Haggerty

Opinion

{445 F. Supp. 2d 1233} OPINION AND ORDER
HAGGERTY, Chief Judge.

Petitioner is an inmate at the Federal Correctional Institution ("FCI") in Sheridan, Oregon. He brings
this Petition for Writ of Habeas Corpus (doc. # 1) under 28 U.S.C. § 2241, alleging that the Bureau of
Prisons ("BOP") has arbitrarily and capriciously refused to award him good time credits pursuant to
18 U.S.C. § 3624(b)(1), which allows BOP to award annually up to 54 days of credit towards the
service of a prisoner's sentence if the prisoner "has earned, or is making substantial progress toward
earning, a high school diploma or an equivalent degree."

Petitioner argues (1) BOP failed to follow its own rules regarding the award of good time{2006 U.S.
Dist. LEXIS 2} credits resulting from educational attainment and (2) violated petitioner's liberty
interest due process rights, by refusing to award the good time credits.

For the reasons that follow, the court finds BOP has acted arbitrarily and capriciously in failing to
follow regulations and BOP's Program Statement regarding petitioner's eligibility for good time
credits. The court, therefore, does not need to address petitioner's due process argument. {445 F.
Supp. 2d 1234} The Petition for Writ of Habeas Corpus is GRANTED.

BACKGROUND
Petitioner was convicted on five counts of the Manufacture and Distribution of Methamphetamine

and one count of Felon in Possession of a Firearm and was sentenced to 30 years imprisonment
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pursuant to the Violent Crime Control and Law Enforcement Act of 1994 ("VCCLEA"). Petitioner
began serving his sentence at the federal prison in Lompoc, California. While at that facility,
petitioner completed 240 hours of classroom instruction in the BOP’s functional literacy program. He
was then transferred to Victorville, where he completed 139 hours of classroom instruction ina GED
program, before voluntarily withdrawing. Petitioner rejoined the program and completed an
additional{2006 U.S. Dist. LEXIS 3} 30 hours of classroom instruction before withdrawing a second
time. As a result of his withdrawal from the GED program, BOP changed his education status to
"GED UNSAT" (GED progress unsatisfactory). Resp. Ans., Toney Decl. at 1-2.

In November 2002, petitioner was transferred to FC! Sheridan, where he was counseled to reenroll in
the GED program. He refused and, instead, enrolled in a correspondence program offered by
Thomson High School, which awarded him a high school diploma in September 2004. 1

Petitioner contends he met BOP's requirements for eligibility for good time credits by completing 240
hours in a functional literacy program and obtaining a high school diploma. BOP disagrees, asserting
petitioner's high school diploma from a correspondence school does not meet BOP's eligibility
requirements.

The court need not decide whether a correspondence course program leading to{2006 U.S. Dist.
LEXIS 4} a high schoo! diploma meets BOP's eligibility requirements for good time credits because
the regulations promulgated to implement § 3624(b)(1), and BOP's Program Statement require only
the completion of 240 hours in a functional literacy program, not a high school diploma or a GED
certificate.

28 C.F.R. § 544.70 sets forth the general requirement:

[A]n inmate confined in a federal institution who does not have a verified [GED] credential or
high school diploma is required to attend an adult literacy program for a minimum of 240
instructional hours or until a GED is achieved, whichever occurs first.(Emphasis added).

28 C.F.R. § 544.70(b)(1) addresses requirements specific to inmates subject to the VCCLEA:

[Aln inmate subject to the VCCLEA . . . shall be deemed to be making satisfactory progress
toward earning a GED credential or high school diploma unless and until the inmate receives a
progress report assignment confirming that:

(i) The inmate refused to enroll in the literacy program;

(ii) The inmate has been found to have committed aprohibited act that occurred in a{2006 U.S.
Dist. LEXIS 5} literacy program during the last 240 instructional hours of the inmate's most
recent enrollment in the literacy program; or

(iii) The inmate has withdrawn from the literacy program. None of the three events described above
apply to petitioner because he completed the requisite 240 hours of functional literacy instruction
while he was at FC] Lompoc. Section 544.73(c) provides:

{445 F. Supp. 2d 1235} At the end of 240 instructional hours, . . . the unit team during scheduled
program review sessions shall meet with the inmate to encourage continued participation in the
literacy program until the inmate earns a GED credential or high school diploma. At these
meetings, the inmate may elect not to continue in the literacy program, and no disciplinary action
will be taken. The inmate may not discontinue this program when participation is mandated by
statute.(Emphasis added).

BOP's Program Statement 5350.28 provides that "[t]his Literacy Program Statement requires
inmates who do not have a GED credential or a high school diploma to complete one period (240
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