DiVito v. Wells
Filing
18
ORDER granting 4 Motion to Dismiss; denying 8 Motion for Summary Judgment; adopting re 15 Report and Recommendations. Therefore this civil action is Closed and judgment shall be Entered in favor of Resp Wells. Signed by Judge Dudley H. Bowen on 11/21/11. (cmr)
ORIGINAL
iJI
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
I P I:
DUBLIN DIVISION
MICHAEL DI VITO,
Petitioner,
CV 311-005
V.
WALTER WELLS, Warden,
Respondent.
ORDER
After a careful, de novo review of the file, the Court concurs with the Magistrate
Judge's Report and Recommendation, to which objections have been filed (doe. no. 17).
Petitioner commenced this case pursuant to 28 U.S.C. § 2241, arguing that he is entitled to
good conduct time (GCT") for time he spent in "constructive custody" of the BOP while
incarcerated in Canada and awaiting trial in the United States. (See generally doe. no. L)
The Magistrate Judge recommended that the instant petition be denied because Petitioner's
claim for GCT while in "constructive custody" of the BOP was successive to an earlier
§ 2241 habeas petition, Divito v. Lap in, CV 308-087, doe. no. 1 (S.D. Ga. Sept. 18, 2008),
and because Petitioner's alternative argument - that the United States sentencing court
intended to impose his sentence to be coterminous with his previous Canadian sentence was without merit. (Doe. no. 15.)
The majority of Petitioner's objections are primarily a reiteration of the arguments
presented in his petition and reply brief. However, one point merits further discussion.
In his objections, Petitioner argues that a prisoner sentenced to 235 months in the
United States will ultimately serve only 204 months and 7 days in prison if he is eligible for
the full amount of GCT. (Id. at 2.) Yet Petitioner, who spent 145 months in Canadian
detention before being sentenced to a 90-month term of imprisonment in the United States
to reach a total intended sentence of 235 months. will only be eligible for GCT based on the
90 months served in actual custody of the Federal Bureau of Prisons ("BOW'). Petitioner
argues that despite having demonstrated good conduct throughout his confinement, he will
serve "approximately 19 months longer than any other inmate with a 235-month sentence,"
which he argues violates his equal protection and due process rights. (Id.) Petitioner's
argument is unavailing.
The Supreme Court has held that prisoners have no constitutional right to GCT.
Wolff v. McDonnell, 418 U.S. 539. 557 (1974) ("It is true that the Constitution itself does
not guarantee good-time credit for satisfactory behavior while in prison."), abrogated on
other grounds by Sandin v. Conner, 515 U.S. 472 (1995). Here, Petitioner alleges that the
130P's policy of denying him eligibility for GCT during his Canadian incarceration violates
due process. As Petitioner has no constitutional right to GCT, this claim must fail.
in regard to his equal protection claim, Petitioner must show: (1) that he has been
treated differently from other "similarly situated" inmates, and (2) that his discriminatory
treatment is based upon a constitutionally impermissible basis, such as race. Jones v. Ray,
279 F.3d 944,946-47 (11th Cir. 2001) (per curiam); see also Elston v. Talladega County Bd.
of Educ., 997 F.2d 1394, 1406 (11th Cir.l993) (requiring plaintiff to demonstrate that
challenged action was motivated by an intent to discriminate in order to establish equal
protection violation).
Here, Petitioner does not meet these criteria. First, Petitioner is not similarly
situated" to prisoners serving 235-month sentences in BOP custody, since Petitioner is only
serving a 90-month sentence in BOP custody. As the Report and Recommendation correctly
points out, Petitioner is not eligible for GCT based on time spent in"constructive custody"
of the BOP while detained in Canada. See also Brown v. McFadden, 416 F.3d 1271, 1273
(11th Cir. 2005) (per curiam) ("[T]he BOP's interpretation of the statute that a federal
prisoner should get good time credit of 54 days for each year he actually serves in prison is
reasonable and therefore is due to be affirmed."). Moreover, Petitioner fails to allege, much
less demonstrate, that the allegedly discriminatory treatment is based on any constitutionally
protected interest. Accordingly, Petitioner's claim that his ineligibility for GCT for the
period spent in Canadian confinement somehow violates the Equal Protection Clause must
also fail.
In sum, Petitioner's objections are without merit and are OVERRULED.
Accordingly. the Report and Recommendation of the Magistrate Judge is ADOPTED as the
opinion of the Court. Therefore Respondent's motion to dismiss is GRANTED, and
Petitioner's motion for summary judgment is DENIED. This civil action is CLOSED, and
a final judgment shall be ENTERED in favor of Respondent Wells.
SO ORDERED thi sday of November, 2011, at Augusta, Georgia.
UNITED STTA(TES DISTRICT JUD
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