Calvert v. Denham

Filing 14

ORDER dismissing this action with prejudice, and denying leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 9/29/14. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-01966-BNB
JOHN L. CALVERT,
Applicant,
v.
DEBORAH DENHAM, Warden,
Respondent.

ORDER OF DISMISSAL

Applicant, John L. Calvert, is in the custody of the Federal Bureau of Prisons
(“Bureau”) at the Federal Correctional Institution in Englewood, Colorado. Mr. Calvert
has filed pro se an Amended Application for a Writ of Habeas Corpus Pursuant to 28
U.S.C. § 2241. (ECF No. 5). He has paid the $5.00 filing fee.
Mr. Calvert claims in the Amended Application that the Bureau is calculating his
sentence incorrectly because he is receiving only 47 days of good time credit each year,
instead of the 54 days that the Sentence Monitoring Good Time Data shows he has
received. (ECF No. 5, at 2; see also id. at 6). Applicant asserts that he is entitled to 98
days of additional good time credits. (Id. at 3). He asks the Court to order the Bureau
to correct his release date “to the actual 54 days per year the [Bureau] says I’m getting.”
(Id. at 5). It appears that Applicant has exhausted administrative remedies for his claim.
(Id. at 7-8).
A federal inmate’s challenge to the Bureau’s calculation and award of good time
credits implicates the execution of his sentence and arises under 28 U.S.C. § 2241.

See Davis v. Roberts, 425 F.3d 830, 833 (10th Cir. 2005); Bradshaw v. Story, 86 F.3d
164, 166 (10th Cir. 1996); see also Kikumura v. Hood, 467 F.3d 1257 (10th Cir. 2006).
The Court construes the Amended Application liberally because Mr. Calvert is
not represented by counsel. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, the Court should not act as
an advocate for pro se litigants. See Hall, 935 F.2d at 1110. For the reasons
discussed below, the Court will dismiss this action.
18 U.S.C. § 3624(b)(1) states, in pertinent part:
[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. . . . [C]redit for the last year or portion of a year of
the term of imprisonment shall be prorated and credited within the last six
weeks of the sentence.
In Barber v. Thomas, 560 U.S. 474 (2010), the Supreme Court concluded that
the phrase “term of imprisonment of more than 1 year” “almost certainly refer[s] to the
sentence imposed, not the time actually served.” Id. at 483-84. When modified by the
phrases “at the end of each year” and “during that year,” however, the Court held that
“term of imprisonment” “refers to prison time actually served rather than the sentence
imposed by the judge.” Id. at 482-85. Thus, to the extent Mr. Calvert contends that he
is entitled to an award of good time credits based on the sentence imposed, his claim is
foreclosed by Barber.
The Bureau’s Sentence Monitoring Good Time Data for Mr. Calvert, dated July
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10, 2014, shows that he has been awarded the maximum number of good time
credits–54 days–for each year served. (ECF No. 5, at 6). The Bureau has projected
that Applicant will receive the maximum 54 days of additional good time credits for each
full year remaining on his sentence. (Id.). For the last year or portion of Mr. Calvert’s
sentence (87 days), he may receive a maximum of 13 days good time credits. (Id.).
This calculation comports with § 3624(b)(1). See Barber, 560 U.S. at 478-79 (“[T]o
keep the award of credit in the last year proportional to awards in other years, the ratio
of [the number of good time days divided by the number of days served] must be
54/365, the same ratio that the BOP applies to full years served. . . . The result is that if
the prisoner serves 260 days, he can earn an additional 38 days of credit for good
behavior.”). The Barber Court deferred to the Bureau’s calculation system which,
according to the Court, “reflects the most natural reading of the statute.” 560 U.S. at
476, see also 477-79.
Mr. Calvert has failed to demonstrate that the Bureau is calculating the award of
good time credits incorrectly. Accordingly, it is
ORDERED that the Amended Application for a Writ of Habeas Corpus Pursuant
to 28 U.S.C. § 2241, filed by John L. Calvert, on July 28, 2014, is DENIED, and this
action is DISMISSED WITH PREJUDICE. It is
FURTHER ORDERED that leave to proceed in forma pauperis on appeal is
denied for the purpose of appeal. The Court certifies pursuant to 28 U.S.C.
§ 1915(a)(3) that any appeal from this order would not be taken in good faith. See
Coppedge v. United States, 369 U.S. 438 (1962). If Mr. Calvert files a notice of appeal
he must also pay the full $505 appellate filing fee or file a motion to proceed in forma
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pauperis in the United States Court of Appeals for the Tenth Circuit within thirty days in
accordance with Fed. R. App. P. 24.
DATED September 29, 2014, at Denver, Colorado.
BY THE COURT:

s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court

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