NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

LUIS D. DE LA CRUZ, :

Civil Action No. 10-3325 (NLH)

Petitioner, :

v. : OPINION

DONNA ZICKEFOOSE, :

Respondent. :

APPEARANCES:

Petitioner pro se Counsel for Respondent

Luis D. De La Cruz Kristin Lynn Vassallo

F.M.C. - Devens - Unit N4 Asst. U.S. Attorney

P.O. Box 879 970 Broad Street

Ayer, MA 01432 Newark, NJ 07102

HILLMAN, District Judge

Petitioner Luis D. De La Cruz, a prisoner previously

confined at the Federal Correctional Institution at Fort Dix, New

Jersey, has submitted a petition for a writ of habeas corpus

pursuant to 28 U.S.C. § 2241. The sole respondent is Warden 1

Donna Zickefoose.

 Section 2241 provides in relevant part: 1

(a) Writs of habeas corpus may be granted by the

Supreme Court, any justice thereof, the district courts

and any circuit judge within their respective

jurisdictions.

(c) The writ of habeas corpus shall not extend to a

prisoner unless-- ... (3) He is in custody in violation

of the Constitution or laws or treaties of the United

States ... .

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I. BACKGROUND

For a number of years, beginning at least in 1999 and

continuing until his arrest in 2001, Petitioner Luis D. De La

Cruz was involved in the distribution of heroin in and around

Lawrence, Massachusetts. See United States v. De La Cruz, 514

F.3d 121, 125-26 (1st Cir. 2008). On February 14, 2006,

following his conviction on various drug offenses, Petitioner was

sentenced to a term of twenty years’ imprisonment to be followed

by five years’ supervised release. Id. at 128.

At the time of his conviction, Petitioner was classified by

the Bureau of Prisons as a deportable alien. 

2

At the time of his conviction, Petitioner had not earned a

high school diploma; therefore, he participated in the Spanishlanguage GED program from October 10, 2006 to February 28, 2007. 

On February 28, 2007, having completed 254 instructional hours,

Petitioner withdrew from the GED class at the United States

Penitentiary in Atlanta, Georgia. He was placed in “GED

unsatisfactory” status as of that date. On August 11, 2008,

while confined at F.C.I. Fort Dix, in New Jersey, Petitioner re-

 In this regard, the Court notes that Petitioner (a native 2

of the Dominican Republic) filed in this Court, in August 2009, a

Petition for an order establishing derivative citizenship through

the naturalization of his mother, pursuant to 8 U.S.C.

§ 1432(a)(3), which he later withdrew upon approval of his N-600

application for certificate of citizenship. See De La Cruz v.

Unknown, Civil No. 09-4450 (D.N.J.). The N-600 application for

certificate of citizenship is for use by an individual to

document U.S. citizenship status based on citizen parentage.

2

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enrolled in the literacy program. On November 5, 2008,

Petitioner completed the GED program and earned his GED.

Based on his “GED unsatisfactory” status from February 28,

2007, till August 11, 2008, Petitioner was awarded 42 days good

conduct time for the periods from March 22, 2006, through March

21, 2007, (the “2007 GCT”) and from March 22, 2007, though March

21, 2008 (the “2008 GCT”).3

On April 16, 2010, the Bureau of Immigration and Customs

Enforcement adjudicated Petitioner’s N-600 Application for

certificate of citizenship and administered the Oath of

allegiance, thereby finalizing Petitioner’s U.S. citizenship.

Here, Petitioner asserts that the Bureau of Prisons refused

to award him the maximum 54 days good conduct time in 2007 and

2008, arbitrarily and in violation of his due process rights.4

 Good conduct time is calculated at the end of each year 3

that an inmate serves. See 18 U.S.C. 3624(b); Barber v. Thomas,

130 S.Ct. 2504 (2010). Because Petitioner earned jail credit

starting on March 22, 2001, his good conduct time is calculated

on March 21 of each subsequent year.

 Petitioner appears to have exhausted his administrative 4

remedies before filing this Petition.

Although 28 U.S.C. § 2241 contains no statutory exhaustion

requirement, a federal prisoner ordinarily may not bring a

petition for writ of habeas corpus under 28 U.S.C. § 2241,

challenging the execution of his sentence, until he has exhausted

all available administrative remedies. See, e.g., Callwood v.

Enos, 230 F.3d 627, 634 (3d Cir. 2000); Arias v. United States

Parole Comm’n, 648 F.2d 196, 199 (3d Cir. 1981); Soyka v.

Alldredge, 481 F.2d 303, 306 (3d Cir. 1973).

In general, the BOP Administrative Remedy Program is a

3

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Respondent has answered that the 2007 GCT and 2008 GCT were

properly calculated. This matter is now ready for decision.

II. LEGAL STANDARD

“Habeas corpus petitions must meet heightened pleading

requirements.” McFarland v. Scott, 512 U.S. 849, 856 (1994). A

petition must “specify all the grounds for relief” and must set

forth “facts supporting each of the grounds thus specified.” See

Rule 2(c) of the Rules Governing § 2254 Cases in the U.S.

District Courts (amended Dec. 1, 2004) (“Habeas Rules”), made

applicable to § 2241 petitions through Rule 1(b) of the Habeas

Rules.

Nevertheless, a pro se pleading is held to less stringent

standards than more formal pleadings drafted by lawyers. Estelle

multi-tier process that is available to inmates confined in

institutions operated by the BOP for “review of an issue which

relates to any aspect of their confinement.” 28 C.F.R. § 542.10. 

Response times for each level of review are set forth in 28

C.F.R. § 542.18. An inmate must initially attempt to informally

resolve the issue with institutional staff. 28 C.F.R. §

542.13(a). If informal resolution fails or is waived, an inmate

may submit a BP-9 Request to “the institution staff member

designated to receive such Requests (ordinarily a correctional

counsel)” within 20 days of the date on which the basis for the

Request occurred, or within any extension permitted. 28 C.F.R.

§ 542.14. An inmate who is dissatisfied with the Warden’s

response to his BP-9 Request may submit a BP-10 Appeal to the

Regional Director of the BOP within 20 days of the date the

Warden signed the response. 28 C.F.R. § 542.15(a). The inmate

may appeal to the BOP’s General Counsel on a BP-11 form within 30

days of the day the Regional Director signed the response. Id. 

Appeal to the General Counsel is the final administrative appeal. 

Id. If responses are not received by the inmate within the time

allotted for reply, “the inmate may consider the absence of a

response to be a denial at that level.” 28 C.F.R. § 542.18.

4

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v. Gamble, 429 U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S.

519, 520 (1972). A pro se habeas petition and any supporting

submissions must be construed liberally and with a measure of

tolerance. See Royce v. Hahn, 151 F.3d 116, 118 (3d Cir. 1998);

Lewis v. Attorney General, 878 F.2d 714, 721-22 (3d Cir. 1989);

United States v. Brierley, 414 F.2d 552, 555 (3d Cir. 1969),

cert. denied, 399 U.S. 912 (1970).

III. ANALYSIS

A. The Statutory and Regulatory Framework

Federal law provides that federal prisoners may receive

credit toward the service of their sentences for satisfactory

behavior, subject to (among other things) an inmate’s completion

of, or “satisfactory progress” toward, a GED credential or high

school diploma, as follows in pertinent part:

(1) Subject to paragraph 2, 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. Subject to paragraph 2, if

the Bureau determines that, during that year, the

prisoner has not satisfactorily complied with such

institutional regulations, the prisoner shall receive

no such credit toward service of the prisoner’s

sentence or shall receive such lesser credit as the

Bureau determines to be appropriate. In awarding

credit under this section, the Bureau shall consider

whether the prisoner, during the relevant period, has

earned, or is making satisfactory progress toward

5

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earning, a high school diploma or an equivalent degree. 

...

(4) Exemptions to the General Educational Development

requirement may be made as deemed appropriate by the

Director of the Federal Bureau of Prisons.

18 U.S.C. § 3624(b).5

The Bureau of Prisons has promulgated a regulation governing

the award of good conduct time credits under § 3624(b).

(c) For inmates serving a sentence for an offense

committed on or after April 26, 1996, the Bureau will

award

(1) 54 days credit for each year served ... if the

inmate has earned or is making satisfactory

progress toward earning a GED credential or high

school diploma; or

(2) 42 days credit for each year served ... if the

inmate has not earned or is not making

satisfactory progress toward earning a GED

credential or high school diploma.

(d) Notwithstanding the requirements of paragraphs (b)

and (c) of this section, an alien who is subject to a

final order of removal, deportation, or exclusion is

eligible for, but is not required to, participate in a

literacy program, or to be making satisfactory progress

toward earning a General Educational Development (GED)

credential, to be eligible for a yearly award of good

conduct time.

(e) The amount of good conduct time awarded for the

year is also subject to disciplinary disallowance ... .

28 C.F.R. § 523.20 (emphasis added). See also Bureau of Prisons

Program Statement 5884.03, Good Conduct Time.

 “Paragraph 2" referred to in the text of § 3624(b)(1) 5

establishes the date on which such good-conduct time vests.

6

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BOP regulations further provide that an inmate “shall be

deemed to be making satisfactory progress toward earning a GED

credential or high school diploma” unless and until one of the

following occurs:

(i) The inmate refuses to enroll in the literacy

program;

(ii) The inmate has been found to have committed a

prohibited act that occurred in a 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.

28 C.F.R. § 544.73(b)(1). See also BOP Program Statement

5350.28, Literacy Program (GED Standard).

A second statutory education provision, establishing a

mandatory “functional literacy” program requirement, is set forth

at 18 U.S.C. § 3624(f).

(1) The Attorney General shall direct the Bureau of

Prisons to have in effect a mandatory functional

literacy program for all mentally capable inmates who

are functionally literate ... .

(2) Each mandatory functional literacy program shall

include a requirement that each inmate participate in

such program for a mandatory period sufficient to

provide the inmate with an adequate opportunity to

achieve functional literacy, and appropriate incentives

which lead to successful completion of such programs

shall be developed and implemented.

(3) As used in this section, the term “functional

literacy” means --

(A) an eighth grade equivalence in reading and

mathematics on a nationally recognized

standardized test;

7

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(B) functional competency or literacy on a

nationally recognized criterion-referenced test;

or

(c) a combination of subparagraphs (A) and (B).

(4) Non-English speaking inmates shall be required to

participate in an English-As-A-Second-Language program

until they function at the equivalence of the eighth

grade on a nationally recognized educational

achievement test.

18 U.S.C. § 3624(f).

Pursuant to the regulations promulgated by the BOP to

implement the mandatory functional literacy requirement, most

federal inmates who do not have a high school diploma or GED are

required to “attend an adult literacy program for a minimum of

240 instructional hours or until a GED is achieved, whichever

occurs first.” 28 C.F.R. § 544.70. Exempted from this

requirement are, among other specified categories of inmates,

“sentenced deportable aliens.” 28 C.F.R. § 544.71(a)(3). 

6

 The term “sentenced deportable alien” is defined in 6

Program Statement 5350.28, Section 9 (c).

c. Who is a sentenced deportable alien?

An inmate is a sentenced deportable alien, and

does not need to participate in the literacy

program, if he/she is:

• assigned a Public Safety Factor ‘H’ status of

“Alien” (see the Security Designation and

Custody Classification Manual) or 

• under a final Bureau of Immigration and

Customs Enforcement (BICE) (formerly the

Immigration and Naturalization Service (INS))

order of deportation, exclusion, or removal.

...

8

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For those inmates who are subject to the mandatory

“functional literacy” requirement, failure to comply can result

in disciplinary action. See 28 C.F.R. § 544.75.

BOP Program Statement 5330.28, Section 9(d), specifically

addresses the relationship of the mandatory “functional literacy”

program requirement, arising out of 18 U.S.C. § 3624(f), to the

“satisfactory progress” toward GED requirement, a statutory

consideration in the award of good conduct time, arising out of

18 U.S.C. § 3624(b).

d. How does the sentenced deportable alien exemption

affect the good conduct time of these inmates?

Although sentenced deportable aliens are exempt

from attending the literacy program for the

mandated 240 instructional hours, they are still

subject to the satisfactory progress literacy

provision of the VCCLEA or the PLRA.

To vest their earned Good Conduct Time (GCT) or be

eligible for the maximum amount of GCT, deportable

aliens without a verified high school diploma or a

GED who are sentenced under the VCCLEA or the PLRA

must meet the satisfactory progress provision of

these two acts specified in Section 17 of this PS.

Program Statement 5330.28, Section 9(d).

B. Due Process Considerations

Convicted and sentenced prisoners retain the protections of

the Due Process Clause of the Fifth and Fourteenth Amendments

that the government may not deprive them of life, liberty, or

property without due process of law. See Wolff v. McDonnell, 418

U.S. 539, 556 (1974); Haines v. Kerner, 404 U.S. 519 (1972);

9

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Wilwording v. Swenson, 404 U.S. 249 (1971). Such protections

are, however, “subject to restrictions imposed by the nature of

the regime to which [prisoners] have been lawfully committed. 

... In sum, there must be mutual accommodation between

institutional needs and objectives and the provisions of the

Constitution that are of general application.” Wolff, 418 U.S.

at 556.

A liberty interest protected by the Due Process Clause may

arise from either of two sources: the Due Process Clause itself

or from state or federal law. See Hewitt v. Helms, 459 U.S. 460,

466 (1983); Asquith v. Department of Corrections, 186 F.3d 407,

409 (3d Cir. 1999).

Federal prisoners have a liberty interest in statutory good

conduct time credits. See McGill v. Martinez, 348 Fed.Appx. 718,

720 (3d Cir. 2009). Where the government has created a right to

good time credits, and has recognized that a prisoner’s

misconduct authorizes deprivation of the right to good time

credits as a sanction, “the prisoner’s interest has real 7

substance and is sufficiently embraced within Fourteenth

Amendment ‘liberty’ to entitle him to those minimum procedures

 The Constitution itself does not guarantee good time 7

credits for satisfactory behavior in prison. Congress, however,

has provided that federal prisoners serving a term of

imprisonment for more than one year, other than a term of

imprisonment for the duration of the prisoner’s life, may receive

credit toward the service of their sentence based upon their

conduct. See 18 U.S.C. § 3624(b); 28 C.F.R. § 523.20.

10

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appropriate under the circumstances and required by the Due

Process Clause to insure that the state-created right is not

arbitrarily abrogated.” Wolff, 418 U.S. at 557.

By contrast, here, the relevant statutory and regulatory

framework affords a maximum of only 42 days annual good conduct

time unless a prisoner is making “satisfactory progress” toward a

GED diploma. Based upon this regulatory maximum, some courts

have held that federal prisoners who are not making “satisfactory

progress” toward a GED diploma have no liberty interest in the

incremental 12 days of good conduct time that is available to

prisoners who are making such “satisfactory progress.” See,

e.g., Holman v. Cruz, 2008 WL 5244580 (D.Minn. 2008).

In any event, to the extent federal prisoners have a liberty

interest in 54 days of good conduct time credit per year, as

opposed to the 42 days maximum credit for which they are eligible

even if they are not making satisfactory progress toward a GED

diploma, they are entitled to notice and an opportunity to be

heard with respect to any deprivation of that liberty interest. 

See generally Mathews v. Eldridge, 424 U.S. 319, 332-35 (1976). 

This Court will assume, without deciding, that Petitioner had a

liberty interest in the maximum 54 days annual good conduct time. 

C. Petitioner’s Claims

Petitioner asserts that the award of only 42 days of 2007

GCT and 2008 GCT was arbitrary and in violation of his due

11

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process rights. Petitioner also asserts that his GED instructor

told him that, as an alien, he did not have to stay in the

literacy program after he had completed 240 hours of instruction,

but that his instructor did not advise him that withdrawal would

have a negative impact on his eligibility for the maximum annual

good conduct time. Petitioner asserts that he would not have

withdrawn if he had known about the effect on his eligibility for

the additional 12 days of annual good conduct time.

It is clear that Petitioner is confusing the two educational

provisions of 18 U.S.C. §§ 3624(b) and (f). As advised by his

GED instructor, Petitioner was not disciplined for withdrawing

from the “functional literacy” program, under 18 U.S.C. § 3624(f)

and its implementing regulations, as he had completed 240 hours

prior to that withdrawal. Moreover, whether or not he was

improperly classified as an “alien,” it is undisputed that he was

never subject to a final order of removal. Thus, whether or not

he was improperly classified as an alien, to the extent he wished

to earn the maximum 54 days annual good conduct time, he was

required to make “satisfactory progress” toward earning a GED. 

This, it is undisputed, he failed to do in 2007 and 2008.

The requirements for earning the maximum 54 days annual good

conduct time, with respect to the educational component, are

clearly set forth in the statutes, regulations, and program

statements referenced in this Opinion. Petitioner was

12

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immediately placed on “GED unsatisfactory” status when he

withdrew from the literacy program and the BOP administrative

remedy procedure was available for him to challenge the change in

his status and the award of only 42 days good conduct time in

2007 and 2008. Indeed, he did so utilize the administrative

remedy procedure.

The Bureau of Prisons correctly applied the applicable

statutes and regulations and afforded Petitioner all appropriate

process to challenge the award of 42 days good conduct time in

2007 and 2008. Petitioner is not entitled to relief. See, e.g.,

Reyes-Morales v. Wells, 766 F.Supp.2d 1349 (S.D. Ga. 2011);

Delgado-Ortiz v. Holencik, 2010 WL 1222271 (C.D. Cal. Jan. 28,

2010), Report and Recommendation Adopted, 2010 WL 1178061 (C.D.

Cal. Mar. 25, 2010); Holman v. Cruz, 2008 WL 5244580 (D.Minn.

Dec. 15, 2008). 

IV. CONCLUSION

For the reasons set forth above, the Petition will be

denied. An appropriate order follows.

At Camden, New Jersey /s/ Noel L. Hillman 

Noel L. Hillman 

United States District Judge

Dated: June 29, 2011 

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